United States v. Diaz

1

UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO DIAZ, Defendant.

No. 24-CR-0032 MV

United States District Court, D. New Mexico

February 23, 2024

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ SENIOR UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Mr. Diaz's Motion to Dismiss the Indictment for Government Violation of Defendant's Sixth Amendment Right to Compulsory Process [Doc. 80]. Having considered the briefs and relevant law having heard oral argument, and being otherwise fully informed, the Court finds that the motion is not well-taken and will be denied.

BACKGROUND

On September 3, 2019, agents with the Drug Enforcement Administration (“DEA”) and officers with the Region III Narcotics Task Force executed a warrant authorizing the search of Francisco Diaz's home at 7 Josephine Road in Santa Fe, New Mexico. Based on the search and an interview with Mr. Diaz, Mr. Diaz was charged with possession with intent to distribute 500 grams and more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Trial in this matter is scheduled to begin on February 26, 2024.

On January 12, 2024, the Court held a hearing on Mr. Diaz's Motion to Suppress Statements and Evidence [Doc. 6]. During the hearing, Mr. Diaz called his fiancee, Michelle Romero, as a witness. After direct examination regarding the events of the morning of September 3, 2019 government counsel cross-examined Michelle Romero, and asked whether she had seen “any cocaine in the master bedroom closet . . . in the days before September 3rd.” Doc. 59 at 105:4106:10. Defense counsel objected on relevance grounds, government counsel countered that it was “clear impeachment,” and the Court observed that there were “potential Fifth Amendment issues.” Id. Government counsel then stated in relevant part “Then she can invoke the Fifth Amendment. We won't be charging her.” Id. Defense counsel conceded, “The Court is right, [Michelle Romero] has a Fifth Amendment. If [government] counsel is going to ask that question, then she needs to have an attorney appointed to her.” Id. Government counsel indicated that he would “end it there,” as, “if the witness [was] going to invoke the Fifth, there [would be] no reason to proceed further.” Id. The Court asked the witness whether that was what she was “going to do,” and the witness responded, “Yes, Your Honor.” Id.

Thereafter on January 19, 2024, Mr. Diaz filed his Witness List, which included Michelle Romero, and indicated that she “[m]ay have information regarding the accessibility and whereabout [sic], prior to 9-3-19, of firearms found in the master bedroom closet at 7 Josephine.” Doc. 40. Mr. Diaz's Witness List also included Daniel Diaz, Mr. Diaz's brother, and indicated that he, too, “[m]ay have information regarding the accessibility and whereabout [sic], prior to 9-3-19, of firearms found in the master bedroom closet at 7 Josephine.” Id.

In an email to the Court and copied to defense counsel on January 30, 2024, government counsel indicated his belief that, based on his initial, partial review of data from Mr. Diaz's iCloud account that had since been “walled off” from him after defense counsel indicated the possibility that the data included attorney-client communications, “there is a risk that defense witnesses will perjure themselves during their testimony.” Doc. 80-1. As a result, government counsel advised that these witnesses “should be permitted to consult with independent counsel before they proceed.” Id.

In response, the Court asked government counsel to submit further information regarding which defense witnesses the government believed might perjure themselves and the basis for this belief. Government counsel replied that the witnesses in question were Michelle Romero^[1] and Daniel Diaz. As to Michelle Romero, government counsel noted in relevant part that she had “testified at the suppression hearing that she would have invoked the Fifth Amendment in response to my questions about the cocaine. I don't think charging her would be a good use of anyone's time, but I can't bind the state, and if I were her I'd want my own lawyer.” Doc. 80-2. As to Daniel Diaz, government counsel recalled reviewing a conversation in which “Mr. Diaz discussed the case with another party, who was clearly a male friend or relative. The friend/relative suggested that Mr. Diaz would be in better shape if only he could figure out who the guns belonged to. Mr. Diaz did not respond to that message.” Id. Government counsel reasoned that if the friend/relative involved in this exchange was indeed Daniel Diaz, “this exchange is potentially problematic if Defendant's brother testifies that he placed the pistols in Defendant's closet, or that he knew to whom the pistols belonged.” Id.

Defense counsel did not respond to government counsel's concerns regarding Michelle Romero. She did, however, advise that she and “[t]elephone forensics expert Wade Swift [had] gone through the messages between Mr. Diaz and his brother, Daniel Diaz and there is not a single message where they discuss Mr. Diaz's case or anything about firearms. The message to which [government counsel] referred in his email yesterday was from someone called “fatty” and the text that person sent stated “find who the guns belonged to really.” Doc. 80-3.

Thereafter, on February 4, 2024, government counsel sent defense counsel an email message asking whether Michelle Romero had separate counsel. Doc. 80 at 3. Although it is not clear precisely when she did so, defense counsel asserts that she has “suggested to Daniel Diaz and Michelle Romero to consult with separate counsel.” Id.

On February 6, 2024, during a meeting at the DEA, “defense counsel and government counsel engaged in a disagreement,” the subject of which is irrelevant to the instant motion. According to the Declaration of Paula Sanchez-Knudsen, a private investigator who also attended the meeting, during their disagreement, government counsel “accused [defense counsel] of encouraging witnesses to perjure themselves.” Doc. 80-4. Ms. Sanchez-Knudsen also states that, in response to defense counsel saying that “if he was going to make such a serious allegation, he better produce evidence of it,” government counsel “demanded to see [defense counsel]'s phone.” Id.

On February 7, 2024, Mr. Diaz filed the instant motion, arguing that the government's “baseless claims that defense witnesses will perjure themselves if they testify,” in addition to the government “directly and openly accus[ing] defense counsel of encouraging witnesses to perjure themselves” have infringed “Mr. Diaz's Sixth Amendment right to compulsory process requiring dismissal by this Court.” Doc. 80 at 6. Mr. Diaz also asks the Court to hold an evidentiary hearing to make specific factual findings in connection with the instant motion. Id. at 9. The government filed a response in opposition on February 9, 2024, objecting both to dismissal of the indictment and to the need for an evidentiary hearing. Doc. 85. On February 10, 2024, Mr. Diaz filed a reply in further support of his motion. Doc. 86. In his reply, Mr. Diaz noted that, since filing the instant motion, his counsel “was notified by the attorney with whom Michelle Romero has consulted that Ms. Romero does not wish to testify.” Id. at 2. Mr. Diaz has not represented to the Court that Daniel Diaz no longer intends to testify.

DISCUSSION

I. Mr. Diaz Is Not Entitled to an Evidentiary Hearing.

“A defendant who requests a hearing bears the burden of showing that there are disputed issues of material fact.” United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004) (citation omitted). For purposes of the instant motion, the Court assumes that the material facts as described by Mr. Diaz and as presented in the exhibits that he has submitted are accurate. The Court thus need not resolve any potential factual disputes between the parties to decide the instant motion.

Further, the Court does not agree with Mr. Diaz's argument, made for the first time in his reply brief, that the Court “must hold an evidentiary hearing regarding the effect” that the government's conduct “has had on the defense witnesses' willingness to testify.” Doc. 86 at 3. The Court need not reach this issue because, as set forth herein, the Court does not find, in the first instance, that the government's conduct infringed Mr. Diaz's constitutional rights. In the absence of unlawful conduct in the first instance, any “effect” of the government's (lawful) conduct on the defense witnesses' willingness to testify is not material. Accordingly, the Court declines to hold an evidentiary hearing before deciding the merits of the instant motion.

II. Dismissal of the Indictment Is Not Warranted, as Government Counsel Did Not Deprive Mr. Diaz of his Constitutional Right to Present a Defense.

“A criminal defendant's right to present a defense is essential to a fair trial.” United States v Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005). The Fifth Amendment and the Sixth Amendment “concomitantly provide a criminal defendant the right to present a defense by compelling the attendance, and presenting the testimony, of his own witnesses.” Id. at 1215. Specifically, the Fifth Amendment “right to due process includes a right to be heard and to offer testimony.” United States v. Pablo, 696 F.3d 1280, 1295 (10th Cir. 2012) (citation omitted). And the Sixth Amendment “right to compulsory process guarantees the defendant the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before...