United States v. Ramos-Burciaga

UNITED STATES OF AMERICA Plaintiff, v. DULCE ISABEL RAMOS-BURCIAGA, Defendant.

Case No. 1:17-cr-002236 WJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 26, 2018

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S RENEWED MOTION TO COMPEL DISCOVERY

THIS MATTER comes before the Court on Defendant's Renewed Motion to Compel Discovery, filed August 6, 2018 (Doc. 76). Having considered the parties' written and oral arguments and applicable law, the Court finds that Defendant's motion is well-taken and, therefore, is GRANTED. The Government shall produce certain discovery, as ordered herein. Moreover, the suppression hearing shall be reopened on the limited grounds stated herein.

BACKGROUND

Defendant was charged with possession with the intent to distribute one kilogram or more of heroin pursuant to 21 USC § 841(a)(1) and § (b)(1)(A). On August 4, 2017, Defendant was arrested at the Greyhound Bus terminal in downtown Albuquerque. Special Agent Jarrell Perry conducted a search of Defendant's bag and found heroin.

I. Prior Litigation in this Case.

Upon Defendant's motion, a Fed. R. Crim. P. 17(c) subpoena was issued to Greyhound, returnable to the Court. A Notice of Receipt was entered by the Court, directing the parties to contact the Court for inspection of the documents. Doc. 22. Multiple passenger manifests were produced, but video of the encounter between Agent Perry and Defendant was not. Defendant's name was not on any of the passenger manifests produced. It is unclear whether the passenger manifest for Defendant's bus was produced, because the passenger manifests list a departure time from Phoenix, while Defendant only provides the arrival time for her bus into Albuquerque. The Government argues that the wrong list was sent by Greyhound. Defendant argues that this omission supports her theory that Agent Perry obtained information about her from some other, secret source. In other words, Defendant argues that the lack of a passenger manifest with her name on it supports her theory that Agent Perry conducted "Parallel Construction" - as in he had secret sources of information, aside from the passenger manifest, that led him to target Defendant.

At an October 26, 2018 status conference, Greyhound represented that they had found a passenger manifest with Defendant's name on it, and would produce it.

The parties have extensively litigated this case. In her First Motion to Compel, Defendant sought certain discovery, including:

a) Any and all material and witnesses Special Agent Perry, or his partner, Agent Pantoja, relied upon, consulted, or otherwise considered in identifying Ms. Ramos-Burciaga as a target of investigation.

b) Any and all information regarding any investigation, information sharing, research, or other data gathering involving Ms. Ramos-Burciaga that preceded the audio-recorded encounter with Special Agent Perry.

Doc. 36, p.2. The Court denied the first motion to compel, on the Government's representation that the evidence either did not exist or was not in the possession of the United States, including any federal agency that worked on the case. Doc. 57. The Court also noted that the duty to comply with Brady rests with prosecution, and the prosecution had the duty to inquire with the relevant federal agencies about the existence of the requested discovery and alert the Court to its existence so a Brady ruling could be made. Doc. 57, p 5-6.

Defendant also filed a Motion to Suppress, seeking to exclude certain evidence on the basis that the encounter and search were not consensual. Doc. 58. The Court denied the motion, relying in part on a favorable credibility determination of Agent Perry, based on the record before the Court at the time. Doc. 87.

At the suppression hearing, Agent Perry testified that he consulted a confidential source and obtained a passenger manifest list. He testified that based on his review of the passenger manifest, he knew whether Defendant checked luggage, where she was traveling from and where she was heading. He testified that when he approached her, he did not know who she was.

II. Renewed Motion to Compel.

Based on that testimony, Defendant filed her Renewed Motion to Compel, seeking the passenger manifest, and any statements by Agent Perry about the passenger manifest's existence. Specifically, Defendant seeks the following discovery:

1) Any and all material and witnesses Special Agent Perry, or his partner, Agent Pantoja, relied upon, consulted, or otherwise considered in identifying Ms. Ramos-Burciaga as a target of investigation.

2) Any and all information regarding any investigation, information sharing, research, or other data gathering involving Ms. Ramos-Burciaga that preceded the audio-recorded encounter with Special Agent Perry.

3) the passenger manifest list previously requested by Defendant;

4) statements by Agent Perry to the Government about the existence of requested discovery.

Defendant argues that the Government previously denied the existence of the passenger manifest list, so either (1) the Government failed to follow the Court's order in inquiring into the existence of the manifest, or (2) Agent Perry lied to the Government about the existence of the manifest.

The Government asserts that Agent Perry regularly destroys the passenger manifest after reviewing it.

Defendant also seeks to reopen the hearing on the Motion to Suppress, on the basis that certain discovery was not provided to her and she therefore could not effectively cross-examine Agent Perry and attack his credibility.

In filings before this Court, the Government has stated that it need not produce the passenger list, because it is not relevant, not Brady material, and already in Defendant's possession. However, the United States represented that it disclosed all evidence in its file. Doc. 43, p.5.

DISCUSSION

I. Requested Discovery is Relevant Brady Material and Subject to Disclosure.

The Government argues that the requested material is irrelevant and not Brady material. The Court disagrees.

A. Brady law.

"Due process mandates disclosure by the prosecution of all evidence that favors the defendant and is 'material either to guilt or punishment.'" United States v. Robinson, 39 F.3d 1115, 1118 (10th Cir.1994)) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194); United States v. Velarde, 485 F.3d 553, 558-59 (10th Cir. 2007). Evidence is favorable if it is exculpatory or impeaching. Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009), citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Cooper, 654 F.3d 1104, 1119 (10th Cir.2011); see also United States v. Torres, 569 F.3d 1277, 1281 (10th Cir. 2009) ("A defendant who seeks a new trial based on an alleged Brady violation must show that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material.").

B. Impeachment Evidence.

"Impeachment evidence is exculpatory for Brady purposes." Cooper, 654 F.3d at 1119; United States v. Torres, 569 F.3d 1277, 1282 (10th Cir. 2009). "Because of the value of cross-examination, when the credibility of a prosecution witness is important, impeaching evidence is subject to Brady disclosure." Nuckols v. Gibson, 233 F.3d 1261, 1267 (10th Cir. 2000).

Moreover, "[s]uppressed evidence that significantly enhanc[es] the quality of the impeachment evidence usually will satisfy the materiality standard." Cooper, 654 F.3d at 1120, quoting Douglas, 560 F.3d at 1174. Thus, impeachment evidence is material under Brady where (1) credibility of a central witness is at issue, and (2) it is not cumulative of other impeachment evidence. See, e.g., United States v. Espinoza, 545 F. App'x 783, 786 (10th Cir. 2013); See also Robinson, 583 F.3d at 1271 ("[H]is testimony was central—indeed essential—to the government's case.... It is not a stretch to say that the guilty verdict in this case depended upon the [confidential informant's] testimony."); Douglas, 560 F.3d at 1175 ("[The witness] was an indispensable witness for the State's case against [the defendant].... Because impeachment of the witness who held the key to the successful prosecution of [the defendant] was denied to the defense, the district court correctly concluded that the State's Brady violations were material."); Nuckols, 233 F.3d at 1266 ("[The witness's] trial testimony was key to a successful prosecution.... If [the witness's] testimony that Mr. Nuckols initiated the interrogation were impeached, the entire support for the State's case would have been significantly undermined, if not destroyed altogether.")

C. Requested Discovery is Brady material.

The requested discovery tends to impeach Agent Perry and attack his credibility and is therefore favorable to Defendant. The requested discovery could bear on whether Agent Perry mislead the Government as to the existence of certain discovery, and whether he in fact used the passenger list as he described at the suppression hearing.

Moreover, the impeachment evidence is material. Agent Perry's testimony will likely be critical to the Government's case, and any guilty verdict will likely depend on his testimony. Evidence that he lied in this case about the existence of evidence would tend to attack his credibility.

D. Government's Duty to Investigate.

"Moreover, the [Brady] rule encompasses evidence known only to police investigators and not to the prosecutor. In order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Strickler v. Greene, 527 U.S. 263, 280-81, 119 S. Ct. 1936, 1948,...