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United States v. Boutte

United States District Court, D. New Mexico

June 4, 2019




         On April 1, 2019, Defendant Milton Boutte filed a Motion to Compel Production (Doc. No. 134). Subsequently, on April 29, 2019, Defendant Boutte filed a Motion to Dismiss (Doc. No. 145) based on the government's alleged discovery abuses. For the reasons set forth below, the Court grants in part and denies in part Defendant's Motion to Compel Production and denies Defendant's Motion to Dismiss.

         I. Background

         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. 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.[1] 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 owners who owned two small businesses, Miratek and Vartek, 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 v. Maryland, 373 U.S. 83, 87 (1963). 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)).

         Federal Rule of Criminal Procedure (“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 that term interpret it 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).

         “A defendant must make a prima facie showing of materiality before he is entitled to obtain requested discovery.” United States v. Lujan, 530 F.Supp.2d 1224, 1234 (D.N.M. 2008) (citing United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). Instead of providing a general description of the information sought or conclusory allegations of materiality, “a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense.” Id. Courts have interpreted “defense” to mean “an argument in response to the prosecution's case-in-chief, i.e., an argument that refutes the government's claims that the defendant committed the crime charged.” Id. (citing United States v. Armstrong, 517 U.S. 456, 462 (1996)). To make this materiality showing, “the evidence must bear some abstract logical relationship to the issues in the case such that pretrial disclosure would enable the defendant significantly to alter the quantum of proof in his favor.” Id. (citing United States v. Lloyd, 992 F.2d 348, 350-51 (D.C. Cir. 1993)). The materiality requirement “is not a heavy burden; rather, evidence is material as long as there is a strong indication that the evidence will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. (internal quotation marks omitted). Ordering production by the government of discovery without any preliminary showing of materiality is inconsistent with Rule 16. Id.

         Should the government fail to comply with its disclosure responsibilities under Rule 16, Rule 16(d)(2) provides a number of options for the court: “(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2). The Tenth Circuit has identified several factors a district court should consider when determining the appropriate sanction:

(1) the reasons the government delayed producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government's delay; ...

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