United States v. Buntyn

MEMORANDUM OPINION AND ORDER

KEA W. RIGGS UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court upon Defendant's Motion for Dismissal for Spoliation of Evidence, filed August 12, 2021 (Doc. 150), and Defendant's Motion for Order to Show Cause for Noncompliance with Multiple Grand Jury Subpoenas Duces Tecum and Rule 17(c) Subpoena Duces Tecum (Doc. 144). The Court issued an order to show cause to Prisoner Transport Services and set a show cause hearing for August 17, 2021 (Doc. 149). That hearing was continued to September 28, 2021 to give Prisoner Transport Services time to find responsive documents. Having reviewed the parties' briefs and applicable law, and considering the arguments presented at hearings on the matter, the Court finds that Defendant's motion to dismiss is not well-taken and is DENIED. The Court further finds that PTS has complied with the subpoenas and the Court therefore QUASHES the order to show cause.

BACKGROUND

A grand jury charged Defendant Anthony Buntyn in a three-count indictment for allegedly abusing detainees in his care while working as a private prison transport officer for Prisoner Transportation Services of America (PTS), in violation of 18 U.S.C. § 242 and 18 § U.S.C. 1512(b)(3). Count One alleges that Defendant's use of a taser StrikeLight on a handcuffed detainee

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amounts to an unconstitutional use of unreasonable force. Count Two alleges that Defendant was deliberately indifferent to inhumane conditions of confinement. Finally, Count Three, alleges that Defendant attempted to obstruct justice, in violation of 18 U.S.C. § 1512. In this motion, Defendant moves to dismiss on the basis of spoliation of evidence in which he alleges that the government's conduct prevented him from obtaining: “(1) Big Road GPS Data of the transport route, (2) Phone call records between PTS Employees and [Defendant], and, (3) Emails to/from or concerning [Defendant].” Doc. 150 at 1. Alternatively, Defendant requests the Court permit the admission of testimony and evidence that PTS hid legally sought evidence. Id.

DISCUSSION

I. Relevant Law

“The Due Process Clause imposes duties on the government not to deprive a defendant of exculpatory evidence.” United States v. Harry, 816 F.3d 1268, 1276 (10th Cir. 2016). In Brady v. Maryland, the United States Supreme Court held 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. 83, 87 (1963).

In California v. Trombetta and Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court set out a two-part test regarding the Due Process Clause and the government's destruction or loss of evidence. The Government violates a defendant's right to due process when: (1) it destroys evidence whose exculpatory significance is “apparent before” destruction; and (2) the defendant remains unable to “obtain comparable evidence by other reasonably available means.” See United States v. Bohl, 25 F.3d 904, 909 (10th Cir. 1994) (citing Trombetta at 489). If, however, the exculpatory evidence was not apparently exculpatory but merely “potentially useful, ” the

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failure to preserve the evidence does not violate due process unless the defendant can show bad faith on the part of the police. Id. (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988). In other words, the United States' duty to preserve extends only to evidence that “might be expected to play a significant role in the suspect's defense.” Id. Defendant bears the burden of showing that the missing evidence met that standard when it was lost. See United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir.1999).

The government contends that it has complied with the requirements of the Due Process Protection Act, its duty to investigate and that Defendant has not demonstrated a violation under Trombetta and Youngblood. Doc. 153 at 2.

II. Analysis

Defendant alleges that the government failed to investigate PTS' noncompliance with a series of grand jury subpoenas in purportedly withholding portions of relevant evidence and faults the government for the scope of its follow-up search requests from PTS. Doc. 150 at 4. The Court finds there is no merit to Defendant's arguments.

The Government has complied with requirements of the Due Process Protection Act

Defendant asserts that the government violated his due process rights in that the allegedly lost or deleted PTS evidentiary material possesses exculpatory value, thereby hobbling his defense.

Doc. 150 at 9-10.

The Due Process Protections Act, Pub L. No. 116-182, 134 Stat. 89 (2020), reaffirmed, but did not expand, preexisting prosecutorial obligations in discovery, pursuant to Brady v. Maryland (373 U.S.83 (1963)). In United States v. Badonie (2005 WL 2312480, at *2 (D.N.M. Aug. 29, 2005)), a court in this district explained a prosecutor's obligations under Brady:

[T]he 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

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punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 1196-97. Thus, prosecutors have a duty to disclose evidence that is favorable to a defendant, which is either exculpatory or impeaching and is material to either guilt or punishment, regardless whether the defendant requests the information. See United States v. Agurs, 427 U.S. 97, 106 (1976). In Giglio v United States, 405 U.S. 150, 153 (1972), the Supreme Court extended the prosecution's obligation to disclosure evidence to include evidence that is useful to the defense in impeaching government witnesses even if the evidence is not inherently exculpatory

Brady v. Maryland, however, only requires the government to disclose material exculpatory evidence in its possession. See United States v. Johnson, No 96- 40082-02-SAC, 1997 U.S. Dist. LEXIS 11586, *7 (D. Kan June 9, 1997) (unpublished). “It 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. Tierney, 947 F.2d 854, 864 (8th Cir.1991)(quoting United States v. Beaver, 524 F.2d 963, 966 (5th Cir.1975), cert. denied, 425 U.S. 905 (1976)). See United States v. Kraemer, 810 F.2d 173, 178 (8th Cir.1987)(explaining that the prosecution is not required “to search out exculpatory evidence for the defendant”). On the other hand, “a prosecutor's office cannot get around Brady by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case.” Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir.1984). A prosecutor must disclose information of which it has knowledge and access. United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir.1989). A prosecutor may have a duty to search files maintained by other “governmental agencies closely aligned with the prosecution” when there is a “some reasonable prospect or notice of finding exculpatory evidence.” United States v. Johnson, 1997 U.S. Dist. LEXIS 11586 at *8 (quoting United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir.1992)). A prosecutor does not have a duty, however, to obtain evidence from third parties. See United States v. Combs, 267 F.3d 1167, 1173 (10th Cir.2001)(observing that Brady v. Maryland does not oblige the government to obtain evidence from third parties)

United States v. Badonie, 2005 WL 2312480, at *2 (D.N.M. Aug. 29, 2005) (emphasis added).

Here, it is undisputed that the government has never had in its possession the allegedly missing information from PTS, which is a third party. Nor has Defendant established a link between the government and any destruction of evidence by PTS. Accordingly, the Court finds no due process violation.

Defendant asserts that the government did not properly investigate instances of noncompliance by PTS and suggests that the government's failure “…is particularly troubling in light of the intermingling between PTS and the prosecution…” Doc. 150 at 4. The government

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contends that it has fulfilled, and even gone above and beyond, its duty to investigate. The government highlights its efforts to seek from PTS, at Defendant's request, additional records such as prisoner transport reports for the detainees on the March 2017 PTS transport. Doc. 153 at 3. The government also notes instances where it acted promptly to notify Defendant when it discovered a missing page from evidence provided by PTS. Id. Defendant has pointed to no law that holds the government must go above and beyond to seek documents from a third party on behalf of Defendant. See United States v. Combs, 267 F.3d 1167, 1173 (10th Cir.2001) (observing that Brady v. Maryland does not oblige the government to obtain evidence from third parties) See United States v. Harry, 927 F.Supp.2d 1185, 1210 (D.N.M. 2013), as amended (May 13, 2013), on reconsideration in part, United States v. Harry, 2014 WL 6065672...