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United States v. Ramos-Burciaga

United States District Court, D. New Mexico

January 28, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
DULCE ISABEL RAMOS-BURCIAGA, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING GOVERNMENT'S MOTION TO RECONSIDER REOPENING SUPPRESSION HEARING

         THIS MATTER comes before the Court on the Government's Amended Motion for Reconsideration of the Court's Memorandum Opinion and Order Granting the Defendant's Motion to Compel Discovery and Motion to Reopen Suppression hearing, filed November 27, 2018 (Doc. 100). The Government attaches new evidence to its motion to reconsider and states that the reopened suppression hearing is unnecessary. Having considered the parties' written arguments and applicable law, the Court finds that Government's motion is not well-taken and, therefore, is DENIED. The Court will hold a limited hearing to allow Defendant (1) to cross-examine SA Perry about how he used the passenger manifest list and (2) to ask whether he has been truthful in this case about the existence of the passenger manifest list. However, Defendant's requests for relief in her response (Doc. 102) are DENIED.

         BACKGROUND

         Early on in this case, Defendant filed a motion to compel discovery (Doc. 36). The Court denied Defendant's first motion to compel discovery, noting that the Government “asserts that the requested discovery does not exist or is not in the possession of the United States, including the possession of any federal agency that worked on the investigation. The Government also asserts that any material that does exist has been turned over.” Doc. 57. The Court also directed the United States, if it had not yet done so to inquire “whether the relevant federal agencies possess the requested material.” Id.

         The Court held a suppression hearing on whether Defendant's consensual encounter and search was voluntary or coerced in violation of the Fourth Amendment. The Court denied the Defendant's suppression motion.

         Defendant then filed a renewed motion to compel and to reopen the suppression hearing. Doc. 76. That motion arose out of Special Agent Perry's statements at the suppression hearing that he had used a passenger manifest list in this case, supplied from someone within Greyhound. While SA Perry commonly uses passenger manifest lists in other cases, that was the first time he stated on the record he used one in this case. That passenger manifest list was not produced in discovery, which spurred Defendant to file a renewed motion to compel discovery of the passenger manifest and to reopen the suppression hearing.

         The Court held a hearing on the renewed motion to compel. The undersigned asked the Government why it opposed reopening the suppression hearing, noting:

If Greyhound produces the passenger list …Then at that point, Perry can be cross-examined again for the purposes of Mr. Fernandez attempting to impeach him… because I made credibility determinations on his testimony for the suppression. Then that record is made, and then we'd go ahead and move on.

         Doc. 95, p. 38. The Court granted Defendant's renewed motion, noting that it was unclear why the passenger manifest list was not produced, and that Defendant was likely deprived of the ability to effectively cross-examine SA Perry. Doc. 92. In other words, the Court concluded a reopened suppression hearing was necessary to have a careful and fully informed credibility determination of SA Perry. Since then, SA Perry obtained a copy of the passenger manifest from the confidential source and produced it to Defendant.

         DISCUSSION

         I. Government's Request to Reconsider Reopening of the Suppression Hearing is Denied.

         The Government argues that the Court should reconsider reopening the suppression hearing because new evidence shows that the Government's failure to produce the passenger manifest was not the fault of SA Perry.

         In its motion to reconsider, the Government outlined the factual background of this case and why the passenger manifest was not produced by the Government. The Government also attached AUSA Armijo's interview notes with SA Perry, which indicate that SA Perry told the Government about the passenger manifest early on in this case. The Government represents that the passenger manifest was not previously disclosed because the Government thought it was already disclosed by Greyhound in this case. Once the Government realized that the passenger manifest had not been produced by Greyhound, the Government produced it. The Government argues that any failure to produce the passenger manifest falls on the Government and not SA Perry, and therefore cross-examination of SA Perry is unnecessary.

         Defendant appears to argue that the Government intentionally mislead the Court about the existence of the passenger manifest. The Court has no doubt that the USAO and the attorneys assigned to this case did not intentionally mislead the Court or intentionally fail to comply with the Court's discovery order. Based on the Government's representations, it appears that any error was in good faith, because the (1) the passenger manifest was not in the possession of SA Perry, and (2) the Government believed that the list need not be produced, because Greyhound had already provided it. Notably, when Greyhound produced the passenger manifests to the Court, the Government never made arrangements to inspect them. Doc. 22. Therefore, the Government did not know that Greyhound did not submit the passenger manifest used by SA Perry until Defendant filed her renewed motion to compel discovery.

         However, this does not change the need to allow Defendant the opportunity to cross-examine SA Perry at a reopened suppression hearing. The Court denied Defendant's suppression motion in part based on a favorable credibility determination of SA Perry. The Government appears to request that the Court make a credibility determination of SA Perry based on the representations in the reconsideration motion. The Court cannot do that. For the Court to make a fully informed and careful credibility determination of SA Perry, Defendant needs an opportunity to adequately cross-examine SA Perry at an evidentiary hearing. Moreover, ...


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