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United States v. Boutte

United States District Court, D. New Mexico

February 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MILTON BOUTTE, JOE DIAZ, ARTURO VARGAS, and GEORGE LOWE, Defendants.

         ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL PRODUCTION OF EXCULPATORY MATERIAL; DENYING AS MOOT DEFENDANT'S MOTION TO COMPEL DISCLOSURE OF DISCOVERABLE MATERIALS PURSUANT TO RULE 16; DENYING AS MOOT JOINT MOTION TO CONTINUE; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL THE PRODUCTION OF UNREDACTED DISCOVERY AND THE IDENTIFICATION OF CONFIDENTIAL INFORMANTS, GOVERNMENT EMPLOYEE WITNESSES, AND LAW ENFORCEMENT OFFICER WITNESSES; AND GRANTING UNITED STATES' MOTION TO COMPEL DEFENDANT BOUTTE TO DISCLOSE A WRITTEN SUMMARY OF TESTIMONY AND OPINIONS OF EXPERT WITNESSES

          JOEL M. CARSON III UNITED STATES CIRCUIT JUDGE.

         A grand jury indicted Defendants George Lowe and Milton Boutte with, among other things, knowingly and intentionally defrauding the government and conspiring to do the same. The government has filed one motion to compel discovery and Defendants have filed two.[1] On September 14, 2018, the parties appeared before the Court for a hearing on the motions.[2]

         I. Background

         Defendants were affiliated with the Big Crow Program Office (“BCPO”) at Kirtland Air Force Base in Albuquerque, New Mexico, and allegedly committed their crimes through their ties to that office. Near the end of BCPO's run-“not later than 2004, ” according to the indictment- Defendant Milton Boutte, the then-Director of BCPO, allegedly began to engage in illegal activities with others “to obtain money for [BCPO].” Specifically, the indictment alleges that Boutte “conspired and schemed” with Defendant George Lowe and “other lobbyists, consultants, and contractors” to lobby Congress and other government agencies for money for the benefit of BCPO. The indictment alleges that Boutte and Lowe realized they could misappropriate funds from Small Business Act § 8(a) sole-source contracts to pay for Lowe's lobbying efforts and other unauthorized expenses. But to do so, they needed small businesses. Thus, the two men allegedly further “conspired and schemed” with Defendants Joe Diaz and Arturo Vargas, two small business owners, to “fraudulently obtain and exploit” § 8(a) sole-source contracts for that illegal purpose. Diaz and Vargas allegedly misappropriated at least $506, 000 in funds from two contracts to pay Lowe for his lobbying activities.

         II. Applicable Law

         A defendant may seek discovery under multiple legal authorities. The Due Process Clause requires that the government disclose any evidence to the defendant that “is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The Supreme Court has clarified that a defendant is entitled to receive exculpatory evidence even if he does not request it. See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (“Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government.”). The Constitution does not, however, require the prosecution “to divulge every possible shred of evidence that could conceivably benefit the defendant.” Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 823 (10th Cir. 1995). “Evidence 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.” United States v. Bagley, 473 U.S. 667, 682 (1985). And a reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. (internal quotation marks omitted).

         Even though the government has a demanding duty to disclose exculpatory information, it does not have to take affirmative steps to discover information it does not possess. United States v. Combs, 267 F.3d 1167, 1173 (10th Cir. 2001). But this does not mean the prosecutor can engage in willful ignorance. Brady requires a prosecutor to “disclose information of which [he or she] has knowledge and access.” United States v. Burton, 81 F.Supp.3d 1229, 1249 (D.N.M. 2015). The “prosecution” includes “not only the individual prosecutor handling the case, but also extends to the prosecutor's entire office, as well as . . . other arms of the state involved in investigative aspects of a particular criminal venture.” Smith, 50 F.3d at 824 (internal citation and footnote omitted). Thus, although a prosecutor may be required to search files maintained by governmental agencies that are part of the prosecution team, a prosecutor does not have a duty to obtain evidence from agencies that are not part of the prosecution team. Id. This is because

knowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor's office on the case in question would inappropriately require us to adopt “a monolithic view of government” that would “condemn the prosecution of criminal cases to a state of paralysis.”

United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (quoting United States v. Gambino, 835 F.Supp. 74, 95 (E.D.N.Y. 1993)).

         In addition to Brady's discovery requirements, Federal Rule of Criminal Procedure (“Rule”) 16(a) sets forth additional discovery obligations. Specifically, Rule 16(a)(1)(E) provides that the government must allow defendants access to documents and objects “within the government's possession, custody, or control” where “(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” The Tenth Circuit has not yet defined “the government” for purposes of Rule 16. The courts that have defined “the government” for purposes of Rule 16 interpret the phrase to include only the prosecution team. See United States v. Poindexter, 727 F.Supp. 1470, 1477 (D.D.C. 1989) (“Rule 16(a)(1)[(E)], requires only the production of documents in the hands of the prosecutor, any investigative unit under the prosecutor's control, and any other federal agency allied with the prosecution or involved in the prosecution of criminal litigation.”); United States v. Volpe, 42 F.Supp.2d 204, 221 (E.D.N.Y. 1999) (“Courts have construed the term ‘government' in this rule narrowly to mean the prosecutors in the particular case or the governmental agencies jointly involved in the prosecution of the defendant, and not the ‘government' in general.”); United States v. Chalmers, 410 F.Supp.2d 278, 289 (S.D.N.Y. 2006) (“[T]he Court is not persuaded that the ‘government' for purposes of Rule 16 should be any broader than the ‘prosecution team' standard that has been adopted in the Brady line of cases.”); United States v. Weiss, 2006 WL 1752373, *7 (D. Colo. June 21, 2006) (considering a defendant's request for documents from a non-party executive agency and concluding that no duty to disclose existed under Brady or Rule 16). Courts reason that the same concerns that exist in the Brady context-that a “monolithic view” of government would “condemn the prosecution of criminal cases to a state of paralysis”-apply with equal force in the Rule 16 context. Chalmers, 410 F.Supp.2d at 289.

         III. Analysis

         A. Defendant Boutte's First Motion to Compel

         Defendant Boutte filed a motion to compel but failed to articulate what he seeks from the Court. He later filed a “Notice of Supplemental Authority in Support of Motion to Compel Production of Exculpatory Material.” Although the filing does not actually contain any supplemental authority, it does attach a chain of emails, which includes a list of eight items Defendant Boutte seeks from the government: (1) contract files that the contracting officer is required to maintain for each of the contracts in the indictment; (2) Ron Unruh's BCPO-related emails from 2004-2010; (3) all financial management files for the BCPO including Wide Area Work Flow (“WAWF”) documents for each invoice in the indictment; (4) material related to the authorizations for “search of seizure” referenced in an earlier production; (5) material from the Defense Contract Audit Agency (“DCAA”) responsive to a certain request as well as any Inspector General (“IG”) or DCAA work papers for their audits; (6) electronic media referenced in an earlier production; (7) additional DCAA documents referenced in an earlier production; ...


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