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United States v. Deleon

United States District Court, D. New Mexico

November 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL DELEON, JOE LAWRENCE GALLEGOS, EDWARD TROUP, a.k.a. “Huero Troup, ” LEONARD LUJAN, BILLY GARCIA, a.k.a. “Wild Bill, ” EUGENE MARTINEZ, a.k.a. “Little Guero, ” ALLEN PATTERSON, CHRISTOPHER CHAVEZ, a.k.a. “Critter, ” JAVIER ALONSO, a.k.a. “Wineo, ” ARTURO ARNULFO GARCIA, a.k.a. “Shotgun, ” BENJAMIN CLARK, a.k.a. “Cyclone, ” RUBEN HERNANDEZ; JERRY ARMENTA, a.k.a. “Creeper, ” JERRY MONTOYA, a.k.a. “Boxer, ” MARIO RODRIGUEZ, a.k.a. “Blue, ” TIMOTHY MARTINEZ, a.k.a. “Red, ” MAURICIO VARELA, a.k.a. “Archie, ” a.k.a. “Hog Nuts, ” DANIEL SANCHEZ, a.k.a. “Dan Dan, ” GERALD ARCHULETA, a.k.a. “Styx, ” a.k.a. “Grandma, ” CONRAD VILLEGAS, a.k.a. “Chitmon, ” ANTHONY RAY BACA, a.k.a. “Pup, ” ROBERT MARTINEZ, a.k.a. “Baby Rob, ” ROY PAUL MARTINEZ, a.k.a. “Shadow, ” CHRISTOPHER GARCIA, CARLOS HERRERA, a.k.a. “Lazy, ” RUDY PEREZ, a.k.a. “Ru Dog, ” ANDREW GALLEGOS, a.k.a. “Smiley, ” SANTOS GONZALEZ; PAUL RIVERA, SHAUNA GUTIERREZ, and BRANDY RODRIGUEZ, Defendants.

          Fred Federici Attorney for the United States Acting Under Authority Conferred by 28 U.S.C. § 515 Albuquerque, New Mexico and Maria Ysabel Armijo Randy M. Castellano Matthew Beck Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff.

          Susan M. Porter Albuquerque, New Mexico and Sarah M. Gorman Albuquerque, New Mexico Attorneys for Defendant Angel DeLeon.

          Richard Sindel Sindel, Sindel & Noble, P.C. Clayton, Missouri Brock Benjamin Benjamin Law Firm El Paso, Texas Attorneys for Defendant Joe Lawrence Gallegos.

          Patrick J. Burke Patrick J. Burke, P.C. Denver, Colorado and Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. El Paso, Texas Attorneys for Defendant Edward Troup.

          Russell Dean Clark Las Cruces, New Mexico Attorney for Defendant Leonard Lujan.

          James A. Castle Castle & Castle, P.C. Denver, Colorado and Robert R. Cooper Albuquerque, New Mexico Attorneys for Defendant Billy Garcia.

          Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New Mexico Attorney for Defendant Eugene Martinez.

          Joseph E. Shattuck Marco & Shattuck Law Firm Albuquerque, New Mexico and Jeffrey C. Lahann Las Cruces, New Mexico Attorneys for Defendant Allen Patterson.

          Eduardo Solis El Paso, Texas and John L. Granberg Granberg Law Office El Paso, Texas and Orlando Mondragon El Paso, Texas Attorneys for Defendant Christopher Chavez.

          Nathan D. Chambers Nathan D. Chambers, Attorney at Law Denver, Colorado and Noel Orquiz Deming, New Mexico Attorneys for Defendant Javier Alonso.

          Laura E. Udall Cooper & Udall Law Offices Tucson, Arizona and Scott Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia.

          Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico and Jerry Daniel Herrera Albuquerque, New Mexico Attorneys for Defendant Benjamin Clark.

          Pedro Pineda Las Cruces, New Mexico and León Encinias León Felipe Encinias, Attorney at Law Albuquerque, New Mexico Attorneys for Defendant Ruben Hernandez.

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta.

          Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya.

          Steven M. Potolsky Jacksonville Beach, Florida and Santiago D. Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez.

          Steven Lorenzo Almanza Las Cruces, New Mexico and Ray Velarde El Paso, Texas Attorneys for Defendant Timothy Martinez.

          Joe Spencer El Paso, Texas and Mary Stillinger El Paso, Texas Attorneys for Defendant Mauricio Varela.

          Lauren Noriega The Noriega Law Firm Los Angeles, California and Richard Jewkes El Paso, Texas and Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California Attorneys for Defendant Daniel Sanchez.

          George A. Harrison Las Cruces, New Mexico and Kimberly S. Bruselas-Benavidez Albuquerque, New Mexico Attorneys for Defendant Gerald Archuleta.

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant Conrad Villegas.

          Theresa M. Duncan Duncan Earnest LLC Albuquerque, New Mexico and Marc M. Lowry Rothstein Donatelli LLP Albuquerque, New Mexico Attorneys for Defendant Anthony Ray Baca.

          Charles J. McElhinney CJM Law Firm Las Cruces, New Mexico Attorney for Defendant Robert Martinez.

          Marcia J. Milner Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez.

          Christopher W. Adams Charleston, South Carolina and Amy Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New Mexico Attorneys for Defendant Christopher Garcia.

          William R. Maynard El Paso, Texas and Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico Attorneys for Defendant Carlos Herrera.

          Justine Fox-Young Albuquerque, New Mexico and Ryan J. Villa Law Office of Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez.

          Donavon A. Roberts Albuquerque, New Mexico and Lisa Torraco Albuquerque, New Mexico Attorneys for Defendant Andrew Gallegos.

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson Albuquerque, New Mexico Attorney for Defendant Santos Gonzalez.

          Keith R. Romero Keith R. Romero, Attorney and Counselor at Law Albuquerque, New Mexico Attorney for Paul Rivera.

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez.

          Jerry A. Walz Alfred D. Creecy Samuel Winder Walz and Associates Albuquerque, New Mexico Attorneys for Defendant Brandy Rodriguez.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendants Christopher Garcia, Edward Troup, Joe Gallegos, Arturo Arnulfo Garcia, Andrew Gallegos, Chris Chavez, Mario Rodriguez, Rudy Perez, Carlos Herrera, Anthony Ray Baca, Daniel Sanchez, and Mauricio Varela's Sealed Opposed Motion to Compel Disclosure of Discoverable Materials Pursuant to Rule 16, filed September 22, 2017 (Doc. 1270)(“Motion”). The Court held a hearing on November 9, 2017. The primary issue is whether the Court should compel Plaintiff United States of America to produce the following evidence requested by the Defendants: (i) all documents and records supporting DNA results obtained in the case, including bench notes and Federal Bureau of Investigation (“FBI”) procedures and policies pertaining to DNA testing; (ii) all documentation related to Syndicato de Nuevo Mexico (“SNM”) members charged in separate cases; (iii) all call records, texts, memoranda, 302s, [1] recordings, debrief notes, and documents pertaining to financial payments or benefits relating to Eric Duran, Grace Duran No. 1, Grace Duran No. 2, Felicia Cordova, and Caroline Buena; (iv) all law enforcement cooperation agreements regarding any individual providing information to any law enforcement agency in the investigation; (v) documents pertaining to the United States' witness Mario Montoya's criminal history record and the benefits Montoya received for his cooperation with law enforcement; (vi) subpoenas served upon all sources of investigative information; and (vii) law enforcement agents' notes from debriefs of all defendants and confidential human sources in the case. The Court grants the Motion in part and denies it in part. The Court concludes that: (i) Plaintiff United States of America must produce bench notes describing the observations of technicians conducting DNA analysis, but does not need to produce DNA testing procedures and protocols; (ii) the United States does not need to produce documentation related to SNM members charged in separate cases; (iii) the United States must produce all requested documentation pertaining to the United States' witness Eric Duran for which disclosure is required by Brady v. Maryland, 373 U.S. 83 (1963)(“Brady”), and Giglio v. United States, 405 U.S. 150 (1972)(“Giglio”); (iv) the United States must produce all law enforcement cooperation agreements within the United States' possession and relating to the individuals listed in paragraph 5.f of the Motion; (v) the United States must produce all documentation pertaining to the United States' witness Montoya's criminal history record and the benefits Montoya received for his cooperation with law enforcement to the extent that such documentation exists; (vi) the United States must produce all unsealed subpoenas served upon all sources of investigative information; and (vii) the United States must produce all law enforcement agents' notes from debriefs for which Brady and Giglio require disclosure, and the United States must preserve all other documents pertaining to agents' notes as required by the Jencks Act, 18 U.S.C. § 3500. In addition, the United States and Christopher Garcia must meet and confer to come to a mutual agreement about C. Garcia's remaining discovery requests.

         FACTUAL BACKGROUND

         The Court takes its background facts from the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)(“Indictment”). The background facts are largely unchanged from those facts that the Court provided in its Memorandum Opinion and Order, 323 F.R.D. 672, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background largely reflects the United States' version of events.

         This case deals with crimes that SNM allegedly committed through its members. See Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, “including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking.” Indictment at 2. SNM constitutes an enterprise “as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce.” Indictment at 2-3.

         SNM is a prison gang that formed in the early 1980s at the Penitentiary of New Mexico (“PNM”) after a violent prison riot at PNM during which inmates assaulted and raped twelve correctional officers after taking them hostage. Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 inmates were injured. See Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment at 3. SNM now has approximately 250 members, including “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issue orders to subordinate gang members.” Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders to members outside the prison system. See Indictment at 3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals: primarily the control and profit of narcotics trafficking. See Indictment at 3-4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults.” Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its power. See Indictment at 4. If another gang does not follow SNM's demands, SNM will assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment at 4. SNM engages in violence “to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others.” Indictment at 4. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Indictment at 7. SNM generates income by having its members and associates traffic drugs and extort narcotic traffickers. See Indictment at 8. SNM members' recent conspiracy to murder high-ranking New Mexico Corrections Department (“NM Corrections Department”) Officials motivated the FBI's present investigation. See United States v. Garcia, 221 F.Supp.3d 1275, 1277 (D.N.M. 2016)(Browning, J.).

         In March, 2014, a Doña Ana County, New Mexico, grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder and four other felonies related to the death of Javier Enrique Molina. See Memorandum Opinion and Order at 6, 2016 WL 7242579, at *3, filed October 28, 2016 (Doc. 753)(“MOO”). Molina was J. Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility (“Southern New Mexico”). See MOO at 6, 2016 WL 7242579, at *3. The New Mexico Third Judicial District Attorney's Office accused J. Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See MOO at 6, 2016 WL 7242579, at *3. That New Mexico indictment charged J. Montoya and Armenta with: (i) Molina's murder; (ii) possessing a deadly weapon; (iii) tampering with evidence; and (iv) two counts of conspiracy. See MOO at 6-7, 2016 WL 7242579, at *3. In November, 2015, the state District Attorney dismissed the charges against J. Montoya and Armenta __ as well as separate charges against their alleged accomplice, Defendant Mario Rodriguez, who had been charged with possession of a deadly weapon by a prisoner, tampering, and conspiracy. See MOO at 7, 2016 WL 7242579, at *3. “A spokesperson for the District Attorney's Office indicated the charges were dismissed because the cases were going to be prosecuted at the federal court level.” MOO at 7, 2016 WL 7242579, at *3.

         The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants, charging them with a total of sixteen counts. See Indictment at 1, 9-18. All Defendants are accused of participating in the SNM enterprise's operation and management, and of committing unlawful activities “as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity.” Indictment at 9-18. Defendant Arturo Arnulfo Garcia, Defendant Gerald Archuleta, [2] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [3] and D. Sanchez are the enterprise's alleged leaders. See Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1) define that term; (ii) murder and robbery in violation of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512, and 1513, “involving obstruction of justice, tampering with or retaliating against a witness, victim, or an informant”; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841 and 846. Indictment at 9.

         Specifically, the Indictment alleges that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia murdered “F.C.” Indictment at 9 (Count 1). On the same day, Lujan, B. Garcia, and Defendants Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered “R.G.” Indictment at 10 (Count 2). On June 17, 2007, Defendant Javier Alonso, Troup, A.A. Garcia, Clark, and Defendant Ruben Hernandez allegedly murdered “F.S.” Indictment at 10-11 (Count 3). On November 12, 2012, J. Gallegos and Defendant Andrew Gallegos allegedly conspired to murder “A.B.” Indictment at 11 (Count 4). On the same day, J. Gallegos and A. Gallegos allegedly murdered A.B. See Indictment at 11-12 (Count 5). In March 2014, Armenta, Montoya, M. Rodriguez, Defendant Timothy Martinez, Baca, Defendant Mauricio Varela, D. Sanchez, Defendant Carlos Herrera, and Defendant Rudy Perez allegedly conspired to murder “J.M.” Indictment at 12 (Count 6). On March 7, 2014, Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, D. Sanchez, Herrera, and R. Perez allegedly murdered J.M. See Indictment at 13 (Count 7).

         Further, starting in or around 2003 __ and until about July 13, 2015 __ Baca, Archuleta, and Defendant Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to “J.R.” Indictment at 13-14 (Count 8). Starting “on a date uncertain, but no later than 2013, ” and until the date of the Indictment __ April 21, 2014 __ Baca, R.P. Martinez, and R. Martinez allegedly conspired to murder “D.S.” Indictment at 14 (Count 9). During the same time period, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder “G.M.” Indictment at 15 (Count 10). On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Indictment at 15-16 (Count 11). On the same day, C. Garcia, a convicted felon, allegedly knowingly used and carried a firearm in relation to a conspiracy to murder charge. See Indictment at 16 (Count 12).

         On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against “J.G.” Indictment at 16 (Count 13). From February 1, 2016, until February 27, 2016, J. Gallegos and Defendants Santos Gonzales, Paul Rivera, Shauna Gutierrez, and Brandy Rodriguez allegedly conspired to murder “J.G.” Indictment at 17 (Count 14). Also, on February 27, 2016, J. Gallegos, B. Rodriguez, Gonzales, Rivera, and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G. See Indictment at 17-18 (Count 15). The same Defendants also allegedly tampered with a witness, J.G. See Indictment at 18 (Count 16).

         For fuller factual context, there are four cases before the Court related to SNM's alleged criminal activity. In a related case __ United States v. Baca, No. CR 16-1613 (D.N.M.)(Browning, J.)[4] __ the United States names twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d).[5] The United States is separately prosecuting C. Garcia for drug crimes, see United States of America v. Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.), and a four-defendant prosecution for alleged violent crimes in aid of racketeering, under 18 U.S.C. § 1959, see United States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.).

         PROCEDURAL BACKGROUND

         On October 4, 2016, in a pretrial hearing, the Court outlined its general approach regarding this case's discovery. See Transcript of Hearing (held October 4, 2016), filed October 18, 2016 (Doc. 743)(“Oct. 2016 Tr.”). The United States agreed to produce material under the Jencks Act, fourteen days before trial even though the Jencks Act does not require the United States to produce a witness' statements until after the witness testifies, see Oct. 2016 Tr. at 19:2-12 (Beck), and the Court indicated that it was “not going to require any Jencks material to be produced before the 14 days, ” Oct. 2016 Tr. at 23:10-12 (Court). On the other hand, the Court indicated that the United States “needs to go in and look at these files and do a Brady review, ” and “produce the Brady material promptly, immediately.” Oct. 2016 Tr. at 23:16-19 (Court). The Court later memorialized its discovery determinations in its Sealed Memorandum Opinion and Order at 106-11, 2017 WL 2271430, at *50-52, filed January 3, 2017 (Doc. 809).

         1. The Motion.

         On September 22, 2017, C. Garcia filed the Motion, making thirty-five discovery requests. See Motion at 7-24. Troup, J. Gallegos, Garcia, A. Gallegos, Chavez, Rodriguez, Perez, Herrera, Baca, Sanchez, and Varela join the Motion. See Motion at 1. The Motion specifically requests: (i) the identification, investigatory documents, and Confidential Human Source (“CHS”) documents of all 114 suspected SNM members arrested; (ii) the identification and documentation of all thirty SNM members who are cooperating with law enforcement; (iii) all law enforcement notes from debriefs of all Defendants and CHS; (iv) law enforcement agents' notes regarding all Defendants; (v) telephone records of Duran's use of the NM Corrections Department's telephone lines from December 1, 2014, to the present; (vi) Montoya's entire criminal history and his motivation to cooperate with law enforcement; (vii) all cellular telephone and electronic devices, recordings, and digital reports obtained in the case regarding C. Garcia, Duran, Montoya, Sammy Griego, Baca, Angelina Hito, and Tomas Clark, as well as the electronic surveillance (“ELSUR”) recording of Billy Cordova's cell or person while in custody; (viii) all documents and records supporting DNA results obtained in the case; (ix) all telephones, tablets, and computers seized from C. Garcia, as well as all cellular telephones issued to CHSs; (x) a mirror image of all electronic files obtained during a search warrant executed December 2, 2017, at C. Garcia's residence; (xi) all chains of custody for firearm evidence related to Counts 11 and 12; (xii) all law enforcement agents' notes of an alleged gun deal on November, 29, 2015, involving C. Garcia; (xiii) a list of all law enforcement witnesses, lay witnesses, and expert witnesses whom the United States intends to call at the trial; (xiv) law enforcement reports regarding the allegations in the case; (xv) all judicial orders regarding all NM Corrections Department inmates' use of cellular telephones; (xvi) all subpoenas served on any source of investigative information; (xvii) all documents related to the allegations in the case; (xviii) all forensic laboratory reports obtained in the case; (xix) all criminal history documents related to all CHSs, witnesses, and informants testifying against C. Garcia; (xx) all of C. Garcia's state and federal prison records; (xxi) all prior statements made by any witness whom the United States intends to call at trial; (xxii) all law enforcement communications, notes, and reports related to the case's allegations; (xxiii) all electronic communications between the United States Attorney's Office for the District of New Mexico and any law enforcement agents involved in the case; (xxiv) all electronic communications between law enforcement agents and any of the United States' witnesses; (xxv) a copy of all tapes produced by law enforcement body recorders or dashboard cameras; (xxvi) notice of all evidence that the United States will use against C. Garcia; and (xxvi) recordings and transcripts of all law enforcement interviews conducted between 2004 and the date of sentencing with any witnesses whom the United States intends to call; (xxvii) viewing of all laboratories where DNA analysis was conducted in the case; (xxviii) an immediate, independent testing of all DNA evidence; (xxix) a complete, unredacted set of all discovery that the United States produced in the case; (xxx) a complete, unredacted set of discovery of all CHSs, informants, cooperating Defendants, and witnesses in the case; (xxxi) all NM Corrections Department polices and procedures in effect when C. Garcia was housed at NM Corrections Department facilities; (xxxii) all NM Corrections Department documents regarding SNM; (xxxiii) all evidence of drug distributions to SNM and Defendants in the case; (xxxiv) all prior law enforcement contacts since January 1, 2003, with C. Garcia; and (xxxv) transcripts of audio recordings that the United States intends to use at trial. See Motion at 7-24.

         2. The Hearing.

         The Court held a hearing on the Motion on November 9, 2017. See Transcript of Motion Proceedings on November 9, 2017 at 1 (taken November 9, 2017), filed November 20, 2017 (Doc. 1457)(“Tr.”). C. Garcia noted that the United States “chose not to file a response.” Tr. at 184:17-18 (Sirignano). C. Garcia said that the FBI conducted DNA analyses, but that he had received only the examiner's report. See Tr. at 185:7-11 (Sirignano). C. Garcia said that the FBI had recently “changed its DNA procedures, ” and C. Garcia argued that the United States should disclose collection, storage, and other DNA records so that the “defense DNA expert [can] do what it needs to do based on the subjectivity of the [FBI's new DNA procedures].” Tr. at 185:13-17 (Sirignano).

         The Court stated its concern that, “if there is no problem with the DNA that you know of, it just seems to me that this is a fishing expedition.” Tr. at 186:2-4 (Court). The Court further noted that there is no “reason to think that there is a problem with the DNA or the lab or the testing. And so it seems to me this is probably something you're not entitled to under the criminal rules.” Tr. at 186:6-10 (Court). C. Garcia argued that the FBI's new DNA procedures are “a problem, ” because the FBI's new system changed the “likelihood ratios.”[6] Tr. at 186:15-21 (Sirignano). C. Garcia argued that he is entitled to discovery “[b]ased on the subjectivity of the new standards [and] the way that the examiner is now looking at different electropherograms.” Tr. at 187:1-3 (Sirignano). The Court responded that it interpreted C. Garcia's argument as saying: “Any criminal defendant that has DNA tested by the FBI is entitled to all this information. That just can't be the law, can it?” Tr. at 187:8-10 (Court). The Court added that C. Garcia had not shown “any evidence of unreliability” in the FBI's testing methods. Tr. at 187:15-16 (Court). C. Garcia stated that all he has is “a piece of paper with an opinion” from the FBI, and therefore he does not “know how [the] examiner from the FBI got to the conclusion that it made.” Tr. at 188:24-25 (Sirignano). According to C. Garcia, he cannot “challenge what [the FBI] did without having a record of each step that every DNA examiner must take now with this new science, and to make sure that it was done properly.” Tr. at 189:10-13 (Sirignano). C. Garcia summarized that “all [he is] asking for is what [the FBI] did, their standard operating procedures[, ] if they followed the standard operating procedures, [and] why the FBI changed their likelihood ratios in June 2017 to a different standard of likelihood ratios in July.” Tr. at 189:21-25 (Sirignano).

         C. Garcia conceded that the new likelihood ratios “got better for the defense, ” but that he still believed the FBI's DNA testing procedures are problematic. Tr. at 190:2-3 (Sirignano). C. Garcia argued that there may be additional people's DNA on the firearm that the FBI tested. See Tr. at 190:15-18 (Sirignano). C. Garcia asserted that the DNA evidence is “relevant” and may contain Brady material. Tr. at 190:19-20 (Sirignano). C. Garcia further argued that the FBI regularly turns over its DNA testing procedures and that the “Court can't really do its gatekeeping function without really knowing if what they did is generally acceptable.” Tr. at 191:3-5 (Sirignano). The Court asked whether there are any court opinions “saying you get this discovery to decide whether you're going to file a Daubert motion?” Tr. at 191:21-23 (Court). C. Garcia responded that he “can find out for the Court.” Tr. at 191:24-25 (Sirignano). C. Garcia stated that the United States has produced the “underlying data” for Counts 1, 2, 3, 4, and 5, but that he is seeking “the training records and the way that the DNA is collected.” Tr. at 193:2-3 (Sirignano). J. Gallegos stated that most of the requested materials are normally produced, and argued that the United States should also produce the DNA testing procedures and the FBI's revisions to the testing procedures that occurred during the time period of the alleged offenses. See Tr. at 194:12-195:5 (Benjamin). J. Gallegos argued that, because there were offenses that occurred as early as 2001 and as late as 2012, the FBI likely used different procedures at different times to test DNA, and therefore the United States should produce procedures for the “multiple different time frames that apply.” Tr. at 195:17 (Benjamin).

         The United States maintained that it could provide the “bench notes from the [DNA] testing, ” but that it would “have to talk to the FBI about [producing the] policies.” Tr. at 196:10-13 (Beck). The United States argued that, under rule 16 of the Federal Rules of Criminal Procedure, it should not have to produce the policies “unless there is some reason to question the credibility” of the DNA reports. Tr. at 196:14-15 (Beck). C. Garcia clarified that bench notes refer to a technician's notes when testing a DNA sample that is “specific to a specific defendant.” Tr. at 197:7-9 (Court, Sirignano). The United States said that it is willing to turn over the bench notes, and it suggested that the Defendants “can come back to us with questions or request more documents based on what [they have] found” in the bench notes. Tr. at 198:17-19 (Beck). The United States confirmed that, in turning over bench notes, it is not turning over “relevant training records for field evidence collection personnel, ” which C. Garcia also requested. Tr. at 199:17-20 (Court, Beck). The United States said that, although it is not willing to turn over statements of “qualifications for each analyst or technician involved in preparation, testing, or interpretation of the subject case, ” “the laboratory's quality manual, ” or “internal and external proficiency results during the relevant accreditation period for each analyst, ” if the defendants find something in the bench notes that leads them to question the DNA evidence's reliability, “that's fine to ask for . . . [and] explore on cross-examination during a Daubert hearing.” Tr. at 200:4-201:17 (Court, Beck). The United States then confirmed that it is willing to disclose reports or specific information relevant to individual Defendants, but that it is not willing to produce “general polic[ies], accreditation reports, [and] CVs.” Tr. at 201:19-24 (Court, Beck). The United States noted, however, that it may be willing to turn over additional materials if the Defendants have issues with the bench notes. See Tr. at 202:1-8 (Beck).

         The United States verified that, when it introduces DNA evidence at trial, it will have an expert present the evidence, and it will “file a notice of that person being an expert.” Tr. at 204:6-8 (Court, Beck). The Court then referenced guidelines that former Attorney General for the United States of America Loretta Lynch issued for the Department of Justice (“DOJ”) in January, 2017, which states that, “[i]n meeting obligations under Rule 16(a)(1)(E)[, ] (F) and (G), the Jencks Act, Brady, and Giglio, and to comply with the department's policies of broad disclosure, the prosecutor should be attuned to the following four steps.” Tr. 205:4-8 (Court). The Court summarized the four steps:

[T]he first step is: In most cases the best practice is to turn over the forensic expert's report to the defense if requested. That seems to be what . . . you're willing to give. Then it also says, number two: The prosecutor should disclose to the defense a written summary __ I'm not sure that's really important, but __ sufficient to explain the basis and reasons for the expert's expected report. And then it says, third: If requested by the defense, the prosecutor should provide the defense with a copy of or access to the laboratory or forensic expert's case file, either electronic or copy. Normally, this will describe the facts or data considered by the forensic expert, including the underlying documentation of examination or analysis performed, and contain the material necessary for another examiner, the defendant's expert, to understand the expert's report. The exact material contained in the case file varies depending upon the type of forensic analysis performed. It may include such items as chain of custody, photographs, analysis, worksheets, bench notes, scope of work, and examination plan data. It then says: In some circumstances the defense may seek laboratory policies and protocols. To the extent that a laboratory provides this information online, the prosecutor may simply share the website address with the defense. Otherwise, determination regarding disclosure of this information should be made on a case-by-case basis in consultation with the forensic analysis involved, taking into account the particularity of the defendant's request and how relevant the request appears to be to the anticipated offenses. And then fourth: The qualifications of the expert. I'm wondering if we can use this somewhat as a guideline to work backwards; that they're entitled to what your expert and proffering witness at the time __ if they're entitled to it at the time __ get a little closer to trial __ use it now to get them the information they need to challenge any of the DNA expert report. What would you think about using your department's guidelines as a guideline for what should be produced in this case?

Tr. at 205:12-207:8 (Court). The United States agreed that the DOJ's guidelines provide a “good framework for all of us to work in.” Tr. 207:24-25 (Beck).

         C. Garcia responded that he “can't live with that right now, because [he's] just going to come back again and ask for more.” Tr. at 208:6-8 (Sirignano). C. Garcia stated that the National Institute of Standards and Technology (“NIST”) published a paper in October, 2017, concluding that the “use of the likelihood ratio . . . is not consistently supported by scientific reasoning approach.” Tr. at 208:20-22 (Sirignano). The Court explained that the NIST is primarily taking rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, and “kind of slicing and dicing it slightly for use as a criminal rule, ” which is less relevant than the DOJ's “rendition.” Tr. at 209:5-15 (Court). The Court also stated that the NIST is “being cautionary because it's trying to provide some basis for . . . the defense experts to challenge the Government's experts. But it doesn't seem to be that it's requiring protocols and those sort[s] of things.” Tr. at 210:3-8 (Court). The Court suggested to C. Garcia that his expert can look at the case files that the United States provides and determine if the DNA test was conducted properly. See Tr. at 210:24-211:6 (Court). C. Garcia identified several ways in which the FBI's DNA testing could have been erroneously conducted, and argued that, “without the proper manuals, . . . the written procedures, [and] when the tests were performed[, ] . . . my expert and I are unable to really do the right job in cross-examining the Government's DNA expert.” Tr. at 213:16-22 (Sirignano). C. Garcia noted that the state lab had produced the evidence specific to Troup when Troup requested it and that, “[i]f the state lab is producing it, and it's needed in order to do a proper evaluation, then there is no reason why the FBI shouldn't produce it.” Tr. at 214:18-21 (Sirignano). C. Garcia concluded that using the likelihood ratio method on “more than one source of DNA is not supported by the current scientific reasoning” and that he needs the evidence he requests “to make a proper Daubert challenge.” Tr. at 215:7-10 (Sirignano).

         Troup noted that the evidence that the state produced for him is the “same [evidence and] . . . underlying data” that C. Garcia now requests. Tr. at 217:4-5 (Harbour-Valdez). Troup argued that “this is the underlying data that you should get in order to make sense of the [FBI's] one- or two-page report that you get.” Tr. at 217:10-13 (Harbour-Valdez). Troup said that the state produced “standard operating procedures related to biology, standard operating procedures related to serology, and the New Mexico Department of Public Safety Northern Forensics Lab standard operating procedures.” Tr. at 218:2-5 (Harbour-Valdez). Troup also identified a variety of reports pertaining to the underlying data that he received from the state. See Tr. at 218:7-219:9 (Harbour-Valdez). C. Garcia then identified which of his requests in his Motion he had received and which he had not received. See Tr. at 219:13-23 (Sirignano).

         The Court then ruled that it woul “draw the line about where the Government is agreeing to draw it, where the Department of Justice is drawing it, where NIST seems to be drawing it, where National Commission on Forensic Science seem to be drawing it.” Tr. at 220:3-7 (Court). The Court stated that it will not grant C. Garcia's requests for laboratory policies and protocols “at the present time.” Tr. at 220:24 (Court). The Court further instructed C. Garcia and the United States to reference paragraphs 1, 2, 3, and 4 of the DOJ's recommendations. See Tr. at 220:7-22 (Court)(citing Memorandum for Heads of Department Components ¶¶ 1-4, at 2-3, Office of the Attorney General (dated January 6, 2017)(“Lynch Memo”), available at https://www.justice.gov/archives/ncfs/doj-responses-ncfs-recommendations (last visited November 18, 2019); Recommendations to the Attorney General on Pretrial Discovery, National Commission on Forensic Science (dated May, 8, 2016), available at https://www.justice.gov/archives/ncfs/work-products-adopted-commission (last visited November 18, 2019)). The Court advised that, after C. Garcia's expert receives the “hard data, ” “if for some reason [his expert] can't give an opinion, ” then C. Garcia should discuss this issue with the United States. Tr. at 220:25-221:2 (Court). The Court further advised that, if the United States and C. Garcia “can't reach a reconciliation, ” then C. Garcia may come back to the Court with “expert testimony telling [the Court that C. Garcia] cannot criticize the Government's expert without protocols and procedures.” Tr. at 221:3-7 (Court).

         J. Gallegos stated that his expert's position is that experts must have access to protocols and procedures to examine the FBI's testing methods. See Tr. at 221:16-24 (Benjamin). The Court stated that it would need “expert testimony” on the need for procedures and protocols. Tr. at 222:7 (Court). The Court also noted that, while it is “interesting” that the state laboratories have produced the requested material for Troup, “it's a different issue as to whether [the Court] order[s] it out of the federal labs.” Tr. at 222:12-13 (Court). The Court said that many experts “opine in front of [the Court] without protocols and ...


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