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United States v. Deleon

United States District Court, D. New Mexico

December 5, 2019

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 Maria Ysabel Armijo Randy M. Castellano Matthew Beck Attorneys for the Plaintiff

          Susan M. Porter Sarah M. Gorman Attorneys for Defendant Angel DeLeon

          Richard Sindel Sindel, Sindel & Noble, P.C. Brock Benjamin Benjamin Law Firm Attorneys for Defendant Joe Lawrence Gallegos

          Patrick J. Burke Patrick J. Burke, P.C. Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. Attorneys for Defendant Edward Troup

          Russell Dean Clark Attorney for Defendant Leonard Lujan

          James A. Castle Castle & Castle, P.C. Robert R. Cooper Attorneys for Defendant Billy Garcia

          Douglas E. Couleur Douglas E. Couleur, P.A. Attorney for Defendant Eugene Martinez

          Joseph E. Shattuck Marco & Shattuck Law Firm Jeffrey C. Lahann Attorneys for Defendant Allen Patterson

          Eduardo Solis John L. Granberg Granberg Law Office Orlando Mondragon Attorneys for Defendant Christopher Chavez

          Nathan D. Chambers Nathan D. Chambers, Attorney at Law Noel Orquiz Attorneys for Defendant Javier Alonso

          Laura E. Udall Cooper & Udall Law Offices Scott Moran Davidson Billy R. Blackburn Attorneys for Defendant Arturo Arnulfo Garcia

          Stephen E. Hosford Stephen E. Hosford, P.C. Jerry Daniel Herrera Attorneys for Defendant Benjamin Clark

          Pedro Pineda León Encinias León Felipe Encinias, Attorney at Law Attorneys for Defendant Ruben Hernandez

          Gary Mitchell Mitchell Law Office Attorney for Defendant Jerry Armenta

          Larry A. Hammond Osborn Maledon, P.A. Margaret Strickland McGraw & Strickland Attorneys for Defendant Jerry Montoya

          Steven M. Potolsky Santiago D. Hernandez Law Office of Santiago D. Hernandez Attorneys for Defendant Mario Rodriguez

          Steven Lorenzo Almanza Ray Velarde Attorneys for Defendant Timothy Martinez

          Joe Spencer Mary Stillinger Attorneys for Defendant Mauricio Varela

          Lauren Noriega The Noriega Law Firm Richard Jewkes Amy E. Jacks Law Office of Amy E. Jacks Attorneys for Defendant Daniel Sanchez

          George A. Harrison Kimberly S. Bruselas-Benavidez Attorneys for Defendant Gerald Archuleta

          B.J. Crow Crow Law Firm Attorney for Defendant Conrad Villegas

          Theresa M. Duncan Duncan Earnest LLC Marc M. Lowry Rothstein Donatelli LLP Attorneys for Defendant Anthony Ray Baca

          Charles J. McElhinney CJM Law Firm Attorney for Defendant Robert Martinez

          Marcia J. Milner Attorney for Defendant Roy Paul Martinez

          Christopher W. Adams Amy Sirignano Law Office of Amy Sirignano, P.C. Attorneys for Defendant Christopher Garcia

          William R. Maynard Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Attorneys for Defendant Carlos Herrera

          Justine Fox-Young Ryan J. Villa Law Office of Ryan J. Villa Attorneys for Defendant Rudy Perez

          Donavon A. Roberts Lisa Torraco Attorneys for Defendant Andrew Gallegos

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson Attorney for Defendant Santos Gonzalez

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

          Angela Arellanes Attorney for Defendant Shauna Gutierrez

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


         THIS MATTER comes before the Court on the Defendants' Omnibus Motion for Timely Discovery of Giglio Materials, filed May 24, 2017 (Doc. 1163)(“Motion”). held a hearing on November 8, 2017. The primary issue is whether the Defendants' twenty requested categories of evidence fall under Giglio v. United States, 405 U.S. 150 (1972)(“Giglio”), and, if so, when the United States must disclose the materials. Specifically, the Court must decide: (i) whether the Defendants are entitled to Plaintiff United States of America's witnesses' competency and mental health records; (ii) whether the Defendants are entitled, under Giglio, to the United States' witnesses' last known addresses; (iii) the United States' deadline to produce its witness list; and (iv) the United States' deadline to produce records of all payments and consideration given to its cooperating witnesses. The Court concludes that: (i) the Defendants' requested records concerning the competency and mental health treatment of each of the United States' witnesses are not in the United States' possession or control; (ii) the United States is not required under Giglio to produce the last known addresses of each of its witnesses; (iii) the United States must produce a good-faith witness list no later than two weeks prior to each trial; and (iv) the United States must disclose all payments issued to its cooperating witnesses no later than two months before each trial.


         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 SNM 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 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 inspired the Federal Bureau of Investigation's (“FBI”) present investigation. See United States v. Garcia, No. CR 15-4275, Memorandum Opinion and Order at 2, 221 F.Supp.3d 1275, 1277, filed November 16, 2016 (Doc. 133). The other relevant facts giving rise to this case are as follows.

         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, [1] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [2] 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) defines 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, 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.)[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] There is also a separate prosecution of 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.).


         Defendant Billy Garcia filed the Motion, and Defendants Joe Gallegos, Edward Troup, Allen Patterson, Christopher Chavez, Javier Alonso, Arturo Arnulfo Garcia, Mario Rodriguez, Mauricio Varela, Daniel Sanchez, Conrad Villegas, Anthony Ray Baca, Christopher Garcia, Carlos Herrera, Rudy Perez, Andrew Gallegos, Shauna Gutierrez, and Brandy Rodriguez (“Defendants”) all joined.[5] See Motion at 1-2. The United States filed a Response. See Response to Defendants' Motion for Timely Discovery of Giglio Materials, filed June 7, 2017 (Doc. 1185)(“Response”). The Court held a hearing on November 8, 2017, at which several of Defendants' requests were resolved. See Transcript of Hearing (held November 8, 2017), filed November 20, 2017 (Doc. 1456)(“Tr.”).

         1.The Motion.

         The Defendants, “pursuant to Fed. R. Crim. P. 16, Brady v. Maryland, 373 U.S. 83 (1963)[(“Brady”)], and Giglio v. United States, 405 U.S. 150 (1972), ” make a general request for twenty different categories of files and information. Motion at 2. The Defendants request: (i) the “last known address of any witness, ” Motion at 6; (ii) “guilty verdicts, juvenile and adjudication or other bad acts” of all witnesses, Motion at 7; (iii) all “consideration” that the United States' witnesses received, Motion at 8; (iv) all “sources of [the United States' witnesses'] bias, motive or interest, ” Motion at 10; (v) “any threats expressed or implied, direct or indirect, whether coercively made or directed against any witness in the form of criminal prosecutions, investigations, or potential prosecutions pending, ” Motion at 12; (vi) “the existence and identification of each occasion on which a witness has testified before any court, grand jury, or other tribunal body or other statements, ” Motion at 14; (vii) “any and all impeaching information contained in any federal and local Government files (or computer information) maintained concerning the witness, ” Motion at 14-15; (viii) “information which impeaches a witness' competency and his capacity and opportunity to observe, remember, recall and narrate as well as his character for veracity, partiality and evidence of ‘basic mental trouble, '” Motion at 15 (quoting Wiman v. Powell, 293 F.2d 605, 606 (5th Cir. 1961)); (ix) “false or erroneous statements, whether under oath or penalty of perjury, or evidence that any witness does not have a good reputation in the community for honesty, ” Motion at 16; (x) “oral and written results of any polygraph test administered to any prosecution witness, ” Motion at 17; (xi) “evidence that a government informant had acted as an informant on prior occasion, ” Motion at 18; (xii) “prior placement records for all inmate informants that either indicate they were a percipient witness or overheard admissions by any defendant, ” Motion at 19; (xiii) “all records of complaints lodged by or on behalf of the witness while incarcerated and records indicating any disciplinary action, ” Motion at 19; (xiv) all information relating to any witness' “acceptance into any witness protection program, ” Motion at 19; (xv) “any sentence, reduction or modification of sentence which does not conform to the law in existence at the time of the sentence reduction, ” Motion at 19; (xvi) “any and all correspondence or other communication between the sentencing, modifying or reducing judge and the Government and or witness regarding the sentence, modification or reduction, ” Motion at 20; (xvii) “information regarding instances of use of controlled substances, ” Motion at 20; (xviii) “any and all information that the witness has recanted their statement, ” Motion at 20; (xix) “any indication that a witness, after cooperating with the government, went back and cooperated with any defendant or target of the criminal investigation, ” Motion at 20; and (xx) “any individual whose statements the government intends on offering as an exception or exclusion to the hearsay rule, ” Motion at 3.

         For the last known addresses of the United States' witnesses, the Defendants note that failure to interview government witnesses may amount to ineffective assistance of counsel, and the witnesses' addresses are necessary to locate and interview them. See Motion at 6 (citing United States v. Napue, 834 F.2d 1311 (7th Cir. 1987)). The Defendants assert that, “[j]ust as the government interviewed inmates that lived with the defendants to obtain information, the defendants wish to interview the inmates who live with the government's witnesses.” Motion at 7.

         Turning to information on the cooperating witnesses' competency, the Defendants argue that “information which impeaches a witness' competency . . . cannot be suppressed and must be disclosed.” Motion at 15 (citing Wiman v. Powell, 293 F.2d 605). Accordingly, the Defendants seek “any medical, psychological or psychiatric evidence tending to show that any informant's ability to perceive, remember, communicate, or tell the truth is impaired.” Motion at 16 (citing United States v. Lindstrom, 698 F.2d 1154, 1163-68 (11th Cir. 1983)). Finally, for “prior placement records, ” the Defendants seek any such records “so that the defense can determine whether or not the inmate informant was in a position to have perceived or overheard what they claim to have witnessed.” Motion at 19.

         The Defendants conclude by requesting “consultation with the Court” on any matters which the United States opposes, but note that they would reluctantly acquiesce in the United States' ex parte consultation with the Court on the discoverability of contested information. Motion at 21-22.

         2.The Response.

         The United States has filed a response. See Response at 1. The United States begins by noting that “the Court concluded that timing of disclosure under Giglio is identical to that for” Brady. Response at 1. The United States also notes the Court's oral ruling at the May 19, 2017, motions hearing, at which “the Court noted the distinction between Giglio materials and statements under Jencks, of which [the Court] did not order early production.” Response at 1. Accordingly, “the United States does not oppose many of the Defendants' requests, as they request information that the United States concedes may be properly considered Giglio materials.” Response at 1. The United States opposes, however, the “Defendants' request for confidential competency and mental illness records, as those materials are protected from the United States' access and it, thus, cannot produce them.” Response at 1. The United States also opposes the Defendants' request for the last known address of each of its witnesses, “as that information does not come within Giglio materials.” Response at 1. Finally, to the extent the United States has materials responsive to the Defendants' requests, “the United States doesn't oppose” the Motion. Response at 1.

         As to its witnesses' last known addresses, the United States concedes that failure to interview government witnesses can, in certain circumstances, amount to ineffective assistance of counsel. See Response at 5 (citing United States v. Tucker, 716 F.2d 576 (9th Cir. 1983)). The United States asserts, however, that “witnesses' addresses are not Giglio materials, and Defendants do not cite to a case that so holds.” Response at 5.

         As to competency information, the United States asserts that such information is beyond its awareness and possession. See Response at 7. The United States acknowledges that such information could be impeachment evidence, but asserts that it is aware of such information for only “one witness who is a former co-Defendant and who underwent a competency hearing in this matter.” Response at 7. Accordingly, the United States requests that the Court deny the Defendants' motion for these materials. See Response at 7.

         The United States then argues that its witnesses' prior placement records are not Giglio materials. See Response at 8. “If the record reflects information inconsistent with a witness' anticipated testimony, it may be. But the Defendants have not provided any basis on which such a determination may be made presently.” Response at 8.

         The United States then agrees to produce: (i) “summaries of its witnesses' NCIC[6] reports, ” Response at 5; (ii) all “consideration paid to its witnesses to the extent that they're in the United States' possession, ” Response at 6; (iii) all “Giglio materials that reflect its witnesses' bias, interest, or motive, to the extent that they're in the United States' possession, ” Response at 6; (iv) “the existence and location of its witnesses' prior testimony, ” with the exception of grand jury transcripts, Response at 6; (v) its agents' notes “that constitute Giglio materials, ” and all impeaching information contained within those files as that information comes to its attention, Response at 6; (vi) all of its witnesses' “false or inconsistent statements, or reputation for dishonesty, to the extent that they're in the United States' possession, ” Response at 7; (vii) all its witnesses' prior informant activities, Response at 8; (viii) “all records of complaints lodged by or on behalf” of its witnesses during incarceration which indicate “any disciplinary action” or “belief that the witness might be a security risk, ” Response at 8; and (ix) all information in its possession regarding its witnesses' use of illegal substances, see Response at 8.

         The United States asserts that it does not have any records pertaining to threats made against any of its witnesses. See Response at 6. The United States also asserts that it does not have any polygraph information for any of its witnesses. See Response at 7. The United States also says that it does not have any information relating to its witnesses' applications into any witness protection program, or any information about any reduction or modification in its witnesses' sentences in exchange for their cooperation. See Response at 8. Finally, the United States responds that it does not have any correspondence between any sentencing judges and the United States regarding its witnesses' sentencing. See Response at 8.

         Accordingly, of the Defendants' twenty requests, the United States disputes only three. It disputes the Defendants' entitlement to each of the United States' witnesses' last known addresses. See Response at 6. It disputes the Defendants' entitlement to its witnesses' competency information. See Response at 7. Last, it disputes the Defendants' entitlement to its witnesses' prior placement records. See Response at 8.

         3.The November 8, 2017, Hearing.

         At the hearing, B. Garcia first argued that he is entitled to all the government's information on “any individual whose statements the Government intends on offering as an exception or exclusion to the hearsay rule.” Tr. at 49:8-11 (Castle). B. Garcia argued that he is entitled, under Giglio and rule 806 of the Federal Rules of Evidence, to impeachment evidence for any declarant whose statement the United States introduces as a co-conspirator's statement. See Tr. at 50:21-51:2 (Castle). B. Garcia acknowledged, however, that, if the United States does not introduce that declarant's statement, the Defendants would not be entitled to impeachment evidence for that declarant under Giglio. See Tr. at 51:24-52:5 (Court, Castle). The United States then agreed to provide Giglio evidence on all witnesses it would call to testify and on all declarants whose statements it would introduce. See Tr. at 52:5-10 (Beck). The United States also agreed to disclose impeachment evidence on any co-Defendants whose statements would be introduced under hearsay exceptions. See Tr. at 52:20-22 (Court, Beck). Baca added, however, that this rule would enable the United States to disclose Giglio materials belatedly on those who remain only potential witnesses until well into trial. See Tr. at 54:23-55:8 (Lowry). Accordingly, Baca requested “overdisclosing” Giglio evidence. Tr. at 55:1 (Lowry). The Court responded that it would not order the United States to do something it was not obligated to do, preferring to encourage the United States' cooperation. See Tr. at 55:20-56:8 (Court, Lowry). Baca countered that certain individuals are almost certainly necessary to prove the United States' case, and so it would be “a little disingenuous” for the United States to “sit on the Brady and Giglio information that's relevant” to those witnesses. Tr. at 56:14-18 (Lowry).

         B. Garcia next argued “the extent” of the United States' disclosure obligations regarding evidence held by various state entities like “the two New Mexico Joint Task Forces, ” which “were involved in the investigation into at least the 2001 murders, ” although B. Garcia acknowledged that this argument derives from separate briefing not slated for argument at this hearing. Tr. at 58:10-16 (Castle). The United States agreed to disclose information relating to federal-state cooperation in the federal prosecution, and stated that it would make good-faith efforts to obtain information from prior cooperation unrelated to the instant prosecution, and reported that the United States would be transparent about those efforts' scope and results. See Tr. at 61:5-21 (Court, Beck).

         B. Garcia turned to his request for information relating to all United States' witnesses' “competency or mental illness.” Tr. at 68:25-69:1 (Castle). The United States responded that, at least with regard to some witnesses, the United States considered such information as “the Court's documents, because there was a competency evaluation, ” and so it asked the Court to “make a determination about what should or shouldn't be disclosed from those documents.” Tr. at 69:17-21 (Castellano). B. Garcia asserted that he wanted both the competency evaluations and the underlying and supporting documents for those evaluations. See Tr. at 72:16-23 (Court, Castle). B. Garcia acknowledged that such information is not in the United States' control and that disclosure may require each witness' consent. See Tr. at 74:3-13 (Castle, Court).

         B. Garcia next argued his request for all information concerning the drug use of the United States' witnesses. See Tr. at 91:2-3 (Castle). The United States responded that any such information would “be in the defendants' disciplinary reports, which have been produced and will be produced in the next disclosure.” Tr. at 91:8-10 (Beck). The United States accordingly acknowledged it was “treating illegal drug use as a Giglio issue, ” which B. Garcia accepted. Tr. at 91:11-13 (Court, Beck). See id. at 91:17-18 (Castle).

         B. Garcia turned to disclosure timing, which he described as “the final issue . . . that's most concerning.” Tr. at 91:21-25 (Castle). B. Garcia complained that the United States promised to immediately disclose all impeachment evidence in June, 2017, but had not yet done so as of the November 8, 2017, hearing. See Tr. at 91:23:92:3 (Castle). B. Garcia argued: “What we've gotten on all the people that we know are going to be witnesses is their criminal history and their plea agreements, with some minor exceptions. We haven't gotten Giglio material.” Tr. at 92:3-6 (Castle). B. Garcia requested some assurances from the United States, and potentially a Court order, because “the history of this case is this Court has ordered productions of things, and they don't get produced many times, when they have been ordered to have been produced.” Tr. at 96:13-18 (Castle). The United States responded that it was “abiding” by the Court's discovery orders, and noted that “there has been numerous productions of jail calls, disciplinary history, classification records, pen packs, STIU files, [and] jail calls, ” the last of which, for a single witness, “are at 5.6 gigabytes.” Tr. at 6-10 (Beck). The United States posited that “what the defendants are really latching onto here is . . . the payments to these cooperating defendants, and these haven't been turned over.” Tr. at 14-17 (Beck). The United States asserted that it did not yet know who it would call as witnesses, and argued that, until it made such a decision, “certain information is not Giglio.” Tr. at 99:1-5 (Beck). The Court proposed setting a deadline for blanket disclosure of all payments and consideration given to the United States' cooperating witnesses, to which the United States reluctantly agreed. See Tr. at 104:8-10 (Court); id. at 108:4-8 (Beck). The Court proposed a deadline of two months before each trial. See Tr. at 108:10-14 (Court, Beck). B. Garcia was skeptical of this arrangement, mistrusting that the United States would meet the deadline. See Tr. at 108:5-10 (Castle).

         Having heard the parties' arguments about the timing of Giglio and other evidentiary disclosure, the Court proposed that the United States give “a good faith best statement of their witnesses for the first trial, with the inclination of being overinclusive, rather than underinclusive, ” Tr. at 113:5-8 (Court, ) by January 29, 2018, and also full disclosure, two months before each trial, of all cash payments to cooperating witnesses and their spouses, see Tr. at 113:18-22 (Court); id. at 120:1-7 (Court, Beck); id. at 142:17-22 (Court). The Defendants will provide their witness list within a week of receiving the United States' witness list. See Tr. at 142:23-24 (Court). For the second trial, the United States would produce its witness list no later than two weeks before trial, and the second trial defendants would produce a witness list within seven days of that disclosure. See Tr. at 142:24-143:3 (Court). The United States acknowledged that Giglio would require disclosure beyond cash payments and committed to working to expedite such disclosure, although this information might not be disclosed by November 17, 2017. See Tr. at 120:1-6 (Court, Beck). The United States also agreed that cooperating witnesses' statements which contradict those of other cooperating witnesses would fall under Giglio. See Tr. at 133:9-24 (Court, Beck).

         The Court noted that it was resolving -- and would continue resolving -- the substance of multiple discovery motions at hearings and asked the Defendants to withdraw motions as the Court resolves them. See Tr. at 14-22 (Court, Sirignano). In response, Baca acknowledged that he had a “stand-alone motion, ” the Motion to Compel Immediate Production of Brady and Giglio Materials, filed October 13, 2017 (Doc. 1332), which the Court's “ruling just neutralized completely.” Tr. at 118:19-20 (Lowry). Baca accordingly withdrew his Motion to Compel Immediate Production of Brady and Giglio Materials. See Unopposed Notice Withdrawing Motion to Compel Immediate Production of Brady and Giglio Materials at 1, filed November 20, 2017 (Doc. 1463).


         In Brady, the Supreme Court of the United States of America explained that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. In Giglio, the Supreme Court extended the prosecution's disclosure obligation to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See 405 U.S. at 153; Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009)(“[N]o distinction is recognized between evidence that exculpates a defendant and ‘evidence that the defense might have used to impeach the [State's] witnesses by showing bias and interest.'”)(quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). Finally, the Supreme Court has refined Brady and clarified that it is not necessary that a defendant request exculpatory evidence; “regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” Kyles v. Whitley, 514 U.S. at 433 (quoting United States v. Bagley, 473 U.S. at 682). See Douglas v. Workman, 560 F.3d at 1172 (“The government's obligation to disclose exculpatory evidence does not turn on an accused's request.”); United States v. Summers, 414 F.3d 1287, 1304 (10th Cir. 2005)(“[T]he prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request.”). On the other hand, “[i]t is well settled that there is no affirmative duty upon the government to take action to discover information which it does not possess.” United States v. Badonie, 2005 WL 2312480, at *2 (D.N.M. 2005)(Browning, J.) (internal quotation marks omitted). “A prosecutor does not have a duty . . . to obtain evidence from third parties.” United States v. Badonie, 2005 WL 2312480, at *2.

         During a criminal prosecution, the Federal Rules of Criminal Procedure and the Constitution of the United States of America require the United States to disclose certain evidence to a criminal defendant. Rule 16 of the Federal Rules of Criminal Procedure is one source that imposes such a duty on the United States. The Due Process Clause of the United States Constitution is another source imposing a duty to disclose on the United States.


         Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure provides:

(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is ...

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