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United States v. Coronado

United States District Court, D. New Mexico

January 15, 2019



         THIS MATTER comes before the Court on Defendant Oscar Moreno-Coronado's Motion to Dismiss the Indictment for Violation of Brady v. Maryland (ECF No. 144). Defendant argues that the Government disclosed records containing material, exculpatory information on the Friday before a Monday trial, resulting in a violation of Defendant's due process right to a fair trial. Defendant requests dismissal of the indictment as the only appropriate remedy. Defendant also requested an evidentiary hearing, if the Court would not dismiss on the briefs. This Court held a hearing on the motion on January 14, 2019. The Court, having considered the motion, briefs, evidence, arguments made at the hearing, applicable law, and otherwise being fully advised, concludes that Defendant's motion to dismiss the indictment should be denied. The Court, however, will continue the trial initially scheduled for January 14, 2019, until Tuesday, January 22, 2019, to remedy the belated disclosure and allow defense counsel more time to prepare for trial in light of the newly disclosed evidence.

         I. BACKGROUND

         The relevant facts of this case are set forth in the Court's Memorandum Opinion and Order (ECF No. 78) and the Court adopts them herein.

         On July 19, 2016, the Court entered its Discovery Order, which included an order that the Government disclose to Defendant material for which disclosure is mandated by Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and the Jencks Act, 18 U.S.C. § 3500, “by the time required by the applicable law.” Order 6, ECF No. 21. On December 23, 2018, Defendant sent the Government a supplemental request for discovery that included the “phone dump” of Talamantes's phone. Gov.'s Resp. ¶ 6, ECF No. 147. Following the holiday, and after fixing technical issues with the Government's file sharing software, on January 7, 2019, Defendant received a reproduction of all previously discovered material as well as newly discovered material. See Id. ¶¶ 8-12. The Government, however, erroneously had not included the requested phone dump of Talamantes's phone, but rather reproduced the phone dump for Defendant's phone. See Id. ¶¶ 13-14. On January 11, 2019, the Government disclosed the Talamantes “phone dump” records at 11:02 a.m. Id. ¶ 15.

         The telephone records indicate that on June 28, 2016, between 3:04 p.m. and 3:06:07 p.m. MT[1], Talamantes told the undercover officer that he would call his guy, he was in a hurry to leave, “But let's get this done….” Def.'s Ex. A, ECF No. 144-1 at 2 of 3. The immediately following message is an incoming text message to Talamantes from someone listed as “Koala.” Id. At 3:06:35 p.m. MST, Koala tells Talamantes in Spanish, “NO t desesperes ya yegue ya viene el d el garage stave w0rking.” Id. At 3:08:36, Talamantes sends an outgoing text to the undercover officer, “Yeah he just texted me .. He's here just at a garage party.” Id. Talamantes texts Koala at 3:08:51, “Ta Bueno.” Id. At 3:09:05 p.m. Talamantes texts Koala, “Estoi al lado de donde te dije, ” or as Defendant asserts is the correct translation, “I am next to where I told you.” Id. & Def.'s Mot. 2, ECF No. 144. There are four additional text messages between “Koala” and Talamantes:

1. Outgoing to Koala at 3:09:25 p.m. En el carrio k me avias visto en..
2. Outgoing to Koala at 3:09:39 p.m. Tu andas en la bonita
3. Incoming from Koala at 3:45:56 U Trust ur guy
4. Outgoing to Koala at 3:46:26 Si wey ya e halado con ellos

Def.'s Ex. A, ECF No. 144-1 at 2 of 3.

         The number corresponding to “Koala” is not the phone number for the phone that agents took from Defendant at the time of his arrest. The Government admits that the “phone dump” of “Moreno-Coronado's phone did not include calls or text messages with the phone number associated with Talamantes” and the phone dump of Talamantes's phone included texts and calls with an individual identified in the phone as “Koala.” Gov.'s Resp. 2, ECF No. 147. Defendant argues that the records contain material, exculpatory information in the form of drug related contacts between Talamantes and “Koala” on the day of the incident in question, showing that someone else supplied the drugs to Talamantes. Def.'s Mot. to Dismiss at 1-2, ECF No. 144.

         Defendant asserts: “This late disclosure has essentially denied Mr. Moreno the right to Due process and to make use of exculpatory evidence. The Government's belated disclosure has severely prejudiced Mr. Moreno thereby depriving him of a fair trial.” Id. at 2-3. Defendant further explained the late disclosure prevented him from preparing cross examination of Government witnesses about their failure to pursue other lines of investigation, from obtaining via subpoena the phone numbers and records for Koala and Talamantes to show their contacts and the lack of contact with Defendant, and from fully preparing to use the data in cross examination of the agents. Id. at 9. Defendant asserts the only proper remedy is dismissal of the indictment. Id. at 10.

         In its response brief, the Government argues the material is not Brady because the Government's information showed “Koala” is really Defendant Moreno Coronado. The Government filed as an attachment a DART Request on the phone number (915)288-7435. See DART Request, ECF No. 147-3. The Government contends in its response and argued at the hearing that a confidential source informed a DEA agent previously that Oscar Moreno using the “Koala” telephone number was looking to hire him to transport drugs from El Paso to an unknown destination. See id.; Jan. 14, 2019 Hr'g Tr. 25:7-17. The Government thus argues that the information in its possession is that Defendant is Koala, and thus, the disclosed text message evidence between Talamantes and Koala is not exculpatory. Alternatively, the Government contends that, even if the material were Brady, the proper remedy is a continuance, not dismissal of the indictment. Gov.'s Resp. 5, ECF No. 147.

         After receiving the Government's response late January 11, 2019, the Court vacated the jury trial scheduled for Monday for the purpose of conducting the hearing on Defendant's motion. At the January 14, 2019 hearing, the Government asserted that Defendant has had a copy of the phone extraction information from the phone seized from Defendant since 2016, and those documents show no contacts with Talamantes's phone number, but numerous contacts with the number in Talamantes's phone assigned to “Koala.” The Government additionally proffered exhibits A-E, which the Government asserts are four images that were forwarded from “Koala's” phone to ...

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