Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Deleon

United States District Court, D. New Mexico

November 21, 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 and 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: (i) Defendants Anthony Ray Baca and Rudy Perez' Sealed Motion to Compel Rule 16 and Brady Materials and for Order to Preserve Law Enforcement Notes, filed March 31, 2017 (Doc. 1037)(“Motion to Compel”); (ii) Defendant Carlos Herrera's Notice of Joinder in Defendant Rudy Perez's Motion and Briefing to Compel Rule 16 and Brady Materials and for Order to Preserve Law Enforcement Notes, filed April 3, 2017 (Doc. 1041)(“Herrera Joinder”); (iii) Defendant Daniel Sanchez' Notice of Joinder in Co-Defendant Rudy Perez's Motion to Compel (Doc. 1037), filed April 10, 2017 (Doc. 1077)(“Sanchez Joinder”); (iv) United States' Opposed Motion to Reconsider the Court's Order for Limited Production of Sensitive Government Recording Devices or Programs, filed December 6, 2017 (Doc. 1551)(“Motion to Reconsider”); and (v) United States' Motion in Limine to Preclude Soliciting Testimony about Sensitive Government Recording Devices or Programs, filed December 1, 2017 (Doc. 1524)(“Motion in Limine”). The Court held evidentiary hearings on May 9, 2017, and May 10, 2017, and hearings on November 27, 2017, December 11, 2017, and December 19, 2017. The primary issue is whether the Court should compel Plaintiff United States of America to disclose and/or preserve the documents and materials that Defendants Daniel Sanchez, Anthony Ray Baca, Carlos Herrera, and Rudy Perez argue are material and exculpatory. Specifically, the Court must determine: (i) whether the United States must produce the original audio and video recordings of Baca's and Perez' conversations with informants; (ii) whether the United States must produce the recording devices used to generate the recordings and whether the Defendants may solicit testimony from the United States' witnesses about the recording devices; (iii) whether, and under what circumstances, the Defendants may handle the physical evidence; (iv) whether the United States must produce Perez' location within the Penitentiary of New Mexico (“PNM”) when recordings of his conversations with informants were made; (v) whether the United States must produce the identity of the law enforcement handler -- agents who dealt directly with informants -- for the informant who recorded conversations with Perez; and (vi) whether the United States must produce correspondence between the law enforcement officers and the New Mexico Corrections Department regarding Defendant Billy Cordova's contraband possession. The Court will grant in part and deny in part the Motion to Compel; grant the Motion to Reconsider; and will grant in part and deny in part the Motion in Limine. The Court concludes that: (i) the United States does not need to produce any additional audio or video recordings, or recording devices; (ii) the United States does not need to produce the recording devices, and the Defendants may ask questions only about the recording devices' general appearance; (iii) the United States must allow Baca and Perez to handle physical evidence, and must provide a custodian who is not a member of the prosecution team to supervise Baca and Perez; (iv) the United States must produce the dates on which any conversations occurred if the date has been redacted from any transcript, but does not need to produce the locations of where the conversations occurred; (v) the United States does not need to produce the identities of the informants' handlers; and (vi) rule 16 of the Federal Rules of Criminal Procedure, Brady v. Maryland, 373 U.S. 83 (1963)(“Brady”), or Giglio v. United States, 405 U.S. 150 (1972)(“Giglio”), require the United States to produce, within fourteen days, any correspondence that may exist between the Federal Bureau of Investigation (“FBI”) or other law enforcement, and the NM Corrections Department, regarding whether Cordova possessed contraband.

         FACTUAL BACKGROUND

         Before setting out its findings of fact, the Court will provide background information regarding the Syndicato de Nuevo Mexico (“SNM”), as well as background information regarding each of the Defendants in this case and the charges that they face. 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 the Syndicato de Nuevo Mexico allegedly committed through its members. 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 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 Federal Bureau of Investigation'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 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 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 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 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, [1] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [2] and 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, T. Martinez, Baca, Defendant Mauricio Varela, 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, 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.)[3] -- 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).[4] 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.).

         FINDINGS OF FACT

         The Court will make findings of fact, because, “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record, ” Fed. R. Crim. P. 12(d), even though rule 12(d) of the Federal Rules of Criminal Procedure “‘does not require detailed findings of facts as long as the essential basis of the court's decision is apparent, '” United States v. Burbage, 365 F.3d 1174, 1178 (10th Cir. 2004)(quoting United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir. 1997)). The Court sets out the following explicit findings of fact:

         1. Adaptive Digital Systems (“ADS”) manufactured the recording devices, and the recording device models used in the case are called “HAWK8, ” “RAVEN2A, ” and the “EAGLE.” Transcript of Motion to Suppress Proceedings on December 11, 2017 at 12:8-13 (Williamson, Beck), filed December 21, 2017 (Doc. 1592)(“Dec. 11 Tr.”).

         2. The recording devices in this case operate using a “proprietary software” designed by ADS. Dec. 11 Tr. at 12:22 (Williamson). See Dec. 11 Tr. at 13:19-24 (Williamson).

         3. The FBI does not have access to the recording devices' software or “source code, ”[5]which is “held by ADS.” Dec. 11 Tr. at 13:18-19 (Beck, Williamson).

         4. The FBI “deliberately” outsourced designing the source code and manufacturing the recording devices to ADS so that it would not have access to the source code or be able to manipulate the recording devices. Dec. 11 Tr. at 13:19-24 (Williamson).

         5. The FBI deploys the recording devices used in this case “around the world.” Dec. 11 Tr. at 36:8 (Williamson).

         6. The recording devices' users “can only turn it on and turn it off, ” and cannot “record over what's on the device” or “rewind” the device. Dec. 11 Tr. at 14:3-7 (Williamson, Beck).

         7. When a user presses the button that turns on the recording device, recording begins “practically instantaneously.” Dec. 11 Tr. at 104:8 (Williamson).

         8. When a recording device runs out of power, the computer program is designed to indicate the event with a flag. See Dec. 11 Tr. at 15:10-12 (Williamson).

         9. A recording device will create a new “session” for fitting its data onto an evidentiary disc when the user turns the device on and then off, when the device needs to “split[] the file because of its size, ” or when the device runs out of power. Dec. 11 Tr. at 16:1-20 (Williamson, Beck).

         10. When the recording devices' software downloads the recording devices' data, “it takes all of the recorded sessions, all the sessions that are collected, and takes the metadata on the recorder” and downloads it to an evidentiary disc. Dec. 11 Tr. at 17:21-24 (Williamson).

         11. The evidentiary disc “cannot be manipulated, ” and, after downloading a recording device's data, “you have to erase the recorder if you want to use it again.” Dec. 11 Tr. at 19:12-13 (Williamson).

         12. A file in the recording devices' software called the “RCD file” “contains the metadata, ” which the FBI cannot access or manipulate. Dec. 11 Tr. at 23:4-5 (Williamson).

         13. When a recording device's data is downloaded onto an evidentiary disc, ADS' software provides a “text file, ” which contains a “hash calculation” unique to that file. Dec. 11 Tr. at 21:1-3 (Williamson).

         14. Using a third-party software, such as an “after-market SHA256 calculator, ” Dec. 11 Tr. at 21:6-7 (Williamson), users can verify that the data downloaded onto an evidentiary disc is “identical” to the data existing on a recording device by comparing the hash values. Dec. 11 Tr. at 27:22 (Williamson). See Dec. 11 Tr. at 20:25-21:9 (Williamson).

         15. If the data on an evidentiary disc does not match the data on a recording device, ADS' “player” will display an error message and a person cannot listen to the recording. Dec. 11 Tr. at 35:10-19 (Beck, Williamson).

         16. Although different recording devices may have different data storage capacities, a recording device will create new sessions that are the same data size for that recording device. See Dec. 11 Tr. at 50:13-51:17 (Jacks, Williamson).

         17. The FBI treats evidentiary discs as “original evidence” and stores the discs in the electronic surveillance (“ELSUR”) storage room. See Dec. 11 Tr. at 82:16-20 (Williamson, Sirignano).

         18. The data on an evidentiary disc is a “mirror copy of what was originally on the device.” Dec. 11 Tr. at 98:22-25 (Lowry, Williamson).

         19. After making copies of evidentiary discs, FBI agents are still able to confirm that the copies are identical to the original evidentiary disc stored in the ELSUR storage room by “running a hash calculation” on the copies. Dec. 11 Tr. at 101:22-102:13 (Lowry, Williamson).

         20. A recording device transitions to a new session when its data storage reaches maximum capacity, and not when a recording reaches a particular length of time. See Dec. 11 Tr. at 109:7-10 (Williamson).

         CONCLUSIONS OF LAW

         Having set out its findings of fact, the Court now articulates its conclusions of law. It begins by providing procedural background regarding this case. The Court then states the law regarding issues relevant to the Court's analysis. Finally, the Court conducts its analysis.

         PROCEDURAL BACKGROUND

         1. On October 4, 2016, in a pretrial hearing, the Court outlined its general approach regarding discovery in this case. 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, 18 U.S.C. § 3500, 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 to Compel.

         2. On March 3, 2017, Perez filed the Motion to Compel, making fourteen specific discovery and/or preservation requests. See Motion to Compel at 1. Baca joins the Motion to Compel, see Motion to Compel at 1, and Herrera and Sanchez filed notices of joinder, see Herrera Joinder at 1; Sanchez Joinder at 1. Herrera makes two additional discovery requests. See Herrera Joinder at 2. The Motion to Compel requests

routine discovery, including the disclosure of exculpatory statements of his co-defendants, the unsealing of plea addenda which the Government has no legal justification to seal, physical access to the evidence in the case including digital, recorded and location evidence, and other information pertaining directly to the voluntariness of his alleged statements.

         Motion to Compel at 24. The Motion to Compel argues that the United States must produce many of these materials immediately under rule 16, Brady, and Giglio. See Motion to Compel at 22. The Motion to Compel also requests that the United States preserve “various categories of law enforcement notes so that they are available at the time of trial.” Motion to Compel at 24.

         3. The Motion to Compel and the Herrera Joinder specifically request that the United States provide the following: (i) the production, pursuant to rule 16, Brady, and Giglio, of any written and/or recorded statements that Montoya, T. Martinez, and Armenta made; (ii) the production of Montoya's, T. Martinez', and Armenta's plea addenda and written recorded statements; (iii) the production of FBI 302s[6] and law enforcement notes pertaining to Montoya, T. Martinez, and Armenta; (iv) the production of copies of all recorded materials tagged into evidence and access by an expert to the original recorded materials; (v) the production of original audio and video recordings of Perez' and Baca's conversations with informants, and the recordings devices used to generate the recordings; (vi) confirmation from the United States that it does not possess any physical evidence other than evidence itemized in the NM State Police evidence inventory; (vii) permission from the United States to handle the physical evidence; (viii) the production of Perez' location within the PNM when recordings of his conversations with informants were made; (ix) verification that the United States has provided Perez with transcripts of all recorded conversations between Perez and informants; (x) the production of law enforcement handler's identity who dealt with the informant who recorded conversations with Perez; (xi) the preservation of any notes prepared by law enforcement handlers of the informant who recorded conversations with Perez; (xii) the production of any documentation and/or correspondence between the FBI or other law enforcement, and the NM Corrections Department, regarding Cordova possessing contraband; (xiii) the production of Cordova's pen pack and STIU file; (xiv) physical access to Southern New Mexico's wheelchair program, the Southern New Mexico infirmary, the cell where Perez was housed, and the cell neighboring Perez' cell; (xv) the production of any transcripts of recorded conversations between informants and Herrera that have yet to be disclosed; and (xvi) the production of any audio recordings in which Herrera purportedly admitted to his involvement in Javier Molina's murder. See Motion to Compel at 9 22.

         2. The Herrera Joinder.

         4. In addition to joining Baca and Perez' Motion to Compel, Herrera requests the disclosure of additional materials. See Herrera Joinder at 1-2. Specifically, Herrera requests “[c]opies of all Recorded Statements in evidence along with access by an expert to the original recorded materials and any evidence that Mr. Herrera was in a leadership position or authorized the ‘hit' on Mr. Molina.” Herrera Joinder at 2. Herrera argues that the United States asserted in a hearing on November 29, 2016, that “Herrera admitted to sanctioning the hit and confessed to such involvement.” Herrera Joinder at 2 (citing Transcript of Motion Proceedings on November 29, 2016 at 136:2-22 (taken November 29, 2016)(Armijo, Court), filed December 20, 2016 (Doc. 804)). Herrera maintains that he contacted the United States and requested any statements by Herrera about sanctioning the “hit” on Molina. Herrera Joinder at 2. According to Herrera, he requested statements on December 1, 2016, January 23, 2017, January 26, 2017, and March 6, 2017, but the United States never located or provided any statements. See Herrera Joinder at 2. Herrera further requests “any evidence” indicating that he “is in a leadership position within SNM that supports the government's theory that he has the authority to sanction SNM activity.” Herrera Joinder at 2.

         3. The Response.

         5. The United States responded on April 17, 2017. See Sealed United States' Response to Defendant's Motion to Compel Rule 16 and Brady Materials and for Order to Preserve Law Enforcement Notes [1037], filed April 17, 2017 (Doc. 1098)(“Response”). The United States maintains that it has either “already produced” the requested materials, or “is not required to produce [the materials] under Rule 16, Jencks, or Brady.” Response at 1. First, the United States argues that the request for any and all written and/or recorded statements made by Montoya, T. Martinez, and Armenta is too broad, and that “the United States is not obligated to produce statements that are beyond the scope of the Court's order or the Government's Constitutional disclosure obligations.” Response at 6. The United States contends that rule 16 forecloses the request, because Sanchez, Baca, Herrera, and Perez are entitled only to their “own oral or written statements made ‘in response to interrogation by a person the defendant knew was a government agent.'” Response at 6-7 (quoting Fed. R. Crim. P. 16(a)(1)(A) & (B))(emphasis added by the United States). Next, the United States argues that it is not required to turn over Jencks Act material until “after the witness has testified on direct examination at trial.” Response at 7 (emphasis in original). The United States asserts that this request, moreover, “sweeps [too] broadly . . . by characterizing any and all statements by Defendants as Brady material.” Response at 8 (emphasis in original).

         6. As to the request for all plea addenda and written recorded statements of Montoya, T. Martinez, and Armenta, the United States argues that “all requested plea agreements have been disclosed in open court.” Response at 8-9. Next, the United States contends that the request for all FBI 302s and law enforcement notes pertaining to Montoya, T. Martinez, and Armenta is too speculative, because it presupposes that “all FBI 302[s] and interview notes [are] Brady material.” Response at 9 (emphasis in original). The United States says that, moreover, it will comply with the Jencks Act by disclosing 302s and interview notes regarding Montoya, Armenta, and T. Martinez after the relevant witness testifies at trial. See Response at 11. As to the request for copies of all recorded materials tagged into evidence and access by an expert to the original recorded materials, the United States argues that it “will coordinate with NM State Police prior to the hearing to determine if the materials have been provided since the United States was not present at the evidence viewing. The United States will disclose what has not been disclosed.” Response at 11.

         7. Next, the United States contends that it has “produced all known physical evidence” in response to the request for confirmation that there is no additional evidence related to Counts 6 and 7. Response at 12. As to the request to handle the physical evidence, the United States responds that Sanchez, Baca, Herrera, and Perez have “not specified what items of evidence it seeks to handle, ” and that, “depending on the sensitive nature of the evidence to be handled, ” it will honor this request if the Defendants provide a legal or factual basis for discovery. Response at 12. The United States maintains that Perez' request for his location within PNM when recordings were made lacks “support in law or fact.” Response at 12. Although Perez argues that the location will help determine if his statements were voluntarily made, the United States argues that the Court should deny his request, because Perez does not “contend[] that his statements were involuntarily made; that his statements were obtained by coercion, duress, or threat of force; or that disclosure of the specific locations of this recording is ‘material' to his defense.” Response at 13 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The United States further posits that “disclosure of the exact location where the recordings were obtained would certainly reveal the identity of the informant in this case, placing his life and his testimony in danger.” Response at 14.

         8. The United States next verifies that it already has disclosed “all relevant transcripts of all recordings” to Perez. Response at 14. As to the request for original audio and video recordings of Baca's and Perez' conversations with informants, the manner of recording, and access to the recording devices used to generate the recordings, the United States responds that: (i) “it has already produced all enhanced and unenhanced recordings”; (ii) it should not have to disclose the manner of recording, because doing so would reveal “sensitive law enforcement techniques”; and (iii) the Court should deny access to the recording devices, because “it is improper to disclose methods and means of investigation.” Response at 14-15. Next, the United States argues that it should not have to reveal the identity of Cordova's law enforcement handlers, because Sanchez, Baca, Herrera, and Perez do not show how disclosure of this information relates to the voluntariness of their statements. See Response at 15 (citing United States v. DeLeon, No. CR 15-4268, 2017 WL 2271430, at *7 (D.N.M. Feb. 8, 2017)(Browning, J.); United States v. Lujan, 530 F.Supp.2d 1224, 1234 (D.N.M. 2008)(Brack, J.)). As to Perez' request for the preservation of any notes prepared by law enforcement handlers of the informant who recorded conversations with Perez, the United States responds that it will preserve relevant Jencks material. See Response at 16 (citing United States v. Hykes, No. CR 15-4299 JB, 2016 WL 1730125 (D.N.M. Apr. 11, 2016)(Browning, J.)).

         9. In response to the request for documentation and correspondence between the FBI and the NM Corrections Department regarding Cordova possessing contraband, including recording devices or telephones, the United States argues that Sanchez, Baca, Herrera, and Perez “fail to offer any factual relationship between the voluntariness of [their] statements and any of the requested information.” Response at 16. The United States avers that Sanchez, Baca, Herrera, and Perez admit that the purpose of the request is to “identify the ‘source of any recording device' used to capture [their] statements, ” Response at 16 (quoting Motion to Compel at 20), and that rule 16(a) prohibits discovery pertaining to “‘investigating or prosecuting the case', ” Response at 17 (quoting Fed.R.Evid. 16(a)(2)). The United States also argues that it should not have to disclose recording devices used to record conversations with informants, because doing so “threatens to reveal law enforcement methods and means which could hamper the use of such items in the future.” Response at 17. The United States argues that it should not have to produce Cordova's penitentiary pack and STIU file, because Sanchez, Baca, Herrera, and Perez “merely contend[] that Billy Cordova's pen pack and STIU files are ‘material'” without explaining how the pen pack and files are material. Response at 17 (quoting Fed R. Evid. 16(a)(1)(E)(i))(emphasis in Response). Last, the United States does not object to the request to access Southern New Mexico's wheelchair program, the infirmary, and the cell neighboring Perez' cell. See Response at 18. The United States maintains that Sanchez, Baca, Herrera, and Perez are “aware of the procedures and arrangements required to access NMCD facilities.” Response at 18.

         4. The Reply.

         10. Perez replied on May 5, 2017, with Baca and Herrera joining. See Sealed Reply to Government's Response to Motion to Compel Rule 16 and Brady Materials and for Order to Preserve Law Enforcement Notes at 1 n.1, filed May 5, 2017 (Doc. 1130)(“Reply”). Baca, Herrera, and Perez argue that the United States has not provided the requested materials, and that neither rule 16 nor the Jencks Act bars production. See Reply at 2-3. First, Baca, Herrera, and Perez limit their request for all statements by Montoya, Armenta, and T. Martinez only to statements “made by these Defendants, not already produced, between March 7, 2014 and the present.” Reply at 4. Next, Baca, Herrera, and Perez aver that the United States “offers no substantive arguments in response to” their request for Montoya's, T. Martinez', and Armenta's plea addenda under rule 11(c)(2) of the Federal Rules of Criminal Procedure and the First Amendment to the Constitution of the United States of America. See Reply at 4.

         11. Next, Baca, Herrera, and Perez argue that the United States must produce 302s and law enforcement notes pertaining to Montoya, T. Martinez, and Armenta. See Reply at 4. Acording to Baca, Herrera, and Perez, “[a]lthough Rule 16(a)(2) prohibits the disclosure of . . .internal government documents made . . . investigating or prosecuting the case, . . . an agent's rough interview notes may be discoverable under Brady if the defendant shows that the notes are exculpatory and material.” Reply at 4-6 (citing Fed.R.Civ.P. 16(a)(2)). Baca, Herrera, and Perez also reiterate their request for “recorded and digital material” pertaining to Counts 6 and 7, because “five months have passed since the evidence viewing, at which Mr. Perez and the other Defendants charged in Counts 6 and 7 were denied permission to play [] or view the material on these discs.” Reply at 5. In addition, Baca, Herrera, and Perez argue that the United States must, under rule 16, provide them and an expert access to the audio and visual recordings. See Reply at 5. Baca, Herrera, and Perez also aver that the United States has not provided all known physical evidence related to Counts 6 and 7, and request that the United States must produce any additional evidence immediately. See Reply at 6.

         12. Next, Baca, Herrera, and Perez argue that they are entitled to the locations where an informant recorded conversations with Perez, because this information is material to the statements' voluntariness, just “as the voluntariness of a defendant's statements is always an issue at trial.” Reply at 6 (citing Dickerson v. United States, 530 U.S. 428, 433 (2000)). According to Perez, “[i]t makes no difference that Mr. Perez has not explicitly stated . . . that his statements were not voluntary, ” which Perez will argue in a later motion to suppress. Reply at 6. Baca, Herrera, and Perez also argue that the United States produce “all transcripts [of recordings by informants] in the United States['] custody . . ., not only the ones the Government deems ‘relevant.'” Reply at 7 (quoting Response at 14)(emphasis in Reply). Next, Baca, Herrera, and Perez repeat their request that the United States produce all unedited recordings of conversations, the “manner of recording, ” the “type of device” used to record conversations, and access to the recording devices. Reply at 8. According to Baca, Herrera, and Perez, “the Government's desire to safeguard the original recordings must give way to [their] right to access the content of the original unedited recordings and recording equipment pursuant to Rule 16 and Brady.” Reply at 8.

         13. As to their request for the identity of Cordova's law enforcement handler, Baca, Herrera, and Perez assert that this information is “clearly material, ” because it “is directly related to the extent of the Government's involvement and use of informants to generate statements, ” which, they maintain, were involuntary. Reply at 9. Baca, Herrera, and Perez also modify their request for preservation to include “all handwritten and typed notes, not only the material the Government deems relevant, of any law enforcement handlers involved in the coercion of Mr. Perez's statement.” Reply at 10 (citing United States v. Lujan, 530 F.Supp. at 1267)(emphasis in Reply). As to documentation and correspondence between the FBI and the NM Corrections Department, regarding Cordova's possession of contraband, Baca, Herrera, and Perez maintain that “[t]his information will elucidate the type and source of any recording device or devices Mr. Cordova used to coerce [their] statements as well as demonstrate[e] the extent of the Government's role in obtaining the records.” Reply at 10. Furthermore, Baca, Herrera, and Perez argue that Cordova's pen pack and STIU files are “material to a determination of the voluntariness of any recorded statements, ” and that the pen pack and files may contain Brady material to which they are entitled. Reply at 11. Last, Baca, Herrera, and Perez contend that they are entitled to access Southern New ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.