United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on Defendant Fernando
Valdez' Motion to Compel Discovery (Motion) and Notice of
Brady Request (Brady Request), both filed
on August 15, 2019. (Docs. 31 and 32). The United States
filed a joint response to Defendant's Motion and
Brady Request on August 28, 2019. (Doc. 36). Having
considered the briefing, the record, and the applicable law,
the Court denies Defendant's Motion to Compel Discovery
and accepts the United States' response to
Defendant's Brady Request.
6, 2019, Defendant was arrested and charged by criminal
complaint with conspiracy to transport illegal aliens, in
violation of 8 U.S.C. § 1324(a)(1)(A). (Doc. 1).
Defendant was indicted on the same charge on July 17, 2019.
parties agree that the United States disclosed seven (7)
pages of discovery on May 22, 2019, and that none of the
disclosed materials included photographs or audio/video of
the Defendant's arrest. (Doc. 31). On May 23, 2019,
defense counsel requested, via email, audio and video
recordings of the Defendant's arrest and post-arrest, and
any relevant photographs. (Id.) Defense counsel
followed-up on this request, again by e-mail, on July 24,
United States Magistrate Judge entered a standard discovery
order on August 6, 2019. (Doc. 25). In relevant, the
discovery order directs the United States to disclose certain
information-including audio and video recordings, and
photographs “which are within the possession, custody,
or control of the government”-within eight (8) days of
the date of entry of the Order. (Id.) at ¶
2(C); see also Fed. R. Crim. P. 16. Paragraph 8
allows a party to “petition this Court” for
requested disclosures “only after a specific request
for production has been denied by the opposing party, ”
and states that “the Court will deny any such petition
unless the party seeking production” complies with
certain requirements. (Id.)
argues that the United States' failure to produce the
requested materials constitutes a “denial” within
the meaning of the discovery order, and asks this Court to
compel production of any audio, video, or photographic
evidence. (Doc. 31). Defendant's Brady Request
seeks, among other things, these same materials. (Doc. 32).
joint response to Defendant's Motion and Brady
Request, the United States essentially assures the Court that
it is aware of its obligations under the law and will comply
with those obligations. (Doc. 36). As a procedural matter,
the United States argues that Defendant failed to seek the
United States' position, as required by D.N.M.LR-Crim.
47.1, prior to filing the Motion. (Id.) Furthermore,
the United States argues that it never denied or rejected a
discovery request. (Id.)
initial matter, the Court accepts the United States'
representations regarding Defendant's Brady
Request. To the extent the Brady Request constitutes
a motion, the motion is denied without prejudice to
Defendant's ability to raise specific issues, if
necessary, in the future.
Court further accepts the United States' representation
that Defendant did not seek concurrence on the instant Motion
before filing. While this may indicate tension in the
opposing counsel relationship, the Court declines to deny the
Motion on this basis.
the Court rejects the United States' argument that it has
not “denied” or rejected a discovery request.
Failing to produce requested materials, regardless of the
reasons therefore, constitutes a “denial” within
the meaning of Paragraph 8. Accordingly, the Court will not
deny the Motion on this basis.
merits, Rule 16(a)(1)(E) requires the United States to
disclose to the defendant, among other things, video and
audio recordings and photographs that are material to
preparing the defense or that the United States will use in
its case-in-chief. For purposes of Rule 16, “[t]he
prosecutor will be deemed to have knowledge of and access to
anything in the possession, custody or control of any
federal agency participating in the same
investigation of the defendant.” United States v.
Fort, 478 F.3d 1099, 1100 (9th Cir. 2007) (emphasis in
original). However, “[s]tate-gathered evidence becomes
subject to Rule 16(a)(1)(E) disclosure ‘when it passes
into federal possession.'” United States v.
Coriz, 2017 WL 4351754, at *1 (D.N.M. 2017) (quoting
United States v. Fort, 472 F.3d 1106, 1118 (9th Cir.
2007)). Rule 16's disclosure requirement is not triggered
until the United States takes possession of the
Court accepts the United States' statement that the
requested materials were generated or gathered by the New
Mexico State Police, that the United States and its agencies
have been working diligently to obtain these materials, and
the United States has not yet taken possession of the
requested materials. Therefore, for purposes of Rule 16, the
United States is not in “possession, custody or
control” of these materials, and disclosure obligation
has not been triggered. Because the United States does not