United States v. Penaloza-Romero

          Drew Winter, Assistant United States Attorney, (for the Government); and

          Douglas Olson, Assistant Federal Defender, (for Defendant).

          ORDER

          Steven E. Rau United States Magistrate Judge

         This matter is before the Court on the parties' non-dispositive pretrial motions. The Court held a hearing on August 5, 2019, (ECF No. 85), but that hearing was continued to a later date as relates to Defendant's dispositive pretrial motions, (ECF Nos. 85, 92, 93). The Court directed the parties to submit additional letter briefs concerning Defendant's Motion to Disclose and Make Informant Available for Interview. (ECF Nos. 41, 85). Those letter briefs have now been submitted. (ECF Nos. 90, 91). Accordingly, based upon the record, motions, and arguments of counsel at the hearing and in their respective filings, IT IS HEREBY ORDERED as follows:

         1. The Government's Motion for Discovery Pursuant to Federal Rules of Criminal Procedure 16(b), 12.1, 12.2, 12.3 and 26.2, (ECF No. 34), is GRANTED as follows: The Government seeks discovery pursuant to pursuant to Fed. R. Crim. P. 12.1, 12.2, 12.3, 16, and 26.2. Defendant has offered no objection to the motion. Therefore, the Government's motion is granted; Defendant shall comply with his obligations under the Federal Rules of Criminal Procedure. With respect to timing of expert disclosures, the specific ruling below on Defendant's Motion for Discovery of Expert under Rule 16(a)(1)(G), (ECF No. 44), controls.

         2. Defendant's Pretrial Motion for Disclosure of 404(b) Evidence, (ECF No. 37), is GRANTED as follows: Defendant requests disclosure, at least three weeks before trial, of “bad act” or “similar course of conduct” evidence the Government intends to offer at trial. The Government does not object, but requests that the deadline be seven days prior to trial. Rule 404(b) requires the Government to provide reasonable notice before trial when evidence of a crime, wrong, or other act will be used to “prov[e] motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). The Court finds that 14 days constitutes reasonable notice in this case. Therefore, no later than 14 days prior to trial, the Government shall provide notice of all evidence that it intends to offer at trial within the purview of Fed.R.Evid. 404(b).

         3. Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant, (ECF No. 38), is GRANTED as follows: Defendant seeks evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The Government indicates it is aware of its obligations under these authorities and has represented to the Court that it has already turned over all such materials. Therefore, the Government shall fully and immediately comply with its obligations under Brady and its progeny.^[1]

         4. Defendant's Motion for Discovery and Inspection, (ECF No. 39), is GRANTED as follows: Defendant seeks discovery pursuant to the Federal Rules of Criminal Procedure. The Government does not object. Therefore, the Government shall comply with its obligations under the Federal Rules.

         5. Defendant's Motion for Discovery and Inspection of Products and Records of Electronic Surveillance, (ECF No. 40), is GRANTED as follows: Defendant seeks discovery obtained from electronic surveillance. The Government indicates it has already provided this information. Therefore, the Government shall produce evidence obtained from electronic surveillance.

         6. Defendant's Motion to Disclose and Make Informant Available for Interview, (ECF No. 41), is GRANTED IN PART and DENIED IN PART as follows: Defendant's motion seeks the disclosure of any informant utilized by the Government in the investigation of this matter and to make such informant available for interview. The Government asserts that informants may testify at trial, so their identity-as well as their statements and criminal histories-will be disclosed along with Jencks Act materials. Based on the parties' dispute, the Court requested additional letter briefs. (ECF Nos. 90, 91).

         The Government explained the circumstances of its informant. The informant was involved in a March 2019 controlled purchase of one pound of methamphetamine from Defendant. That information was used to secure a March 23, 2019 GPS tracker warrant on Defendant's Dodge Dart. Defendant drove the Dodge Dart, with a tracking device installed, to a La Quinta Inn in Bloomington, Minnesota with co-defendant, Irwin Becerra. At the hotel, Becerra purchased 40 pounds of methamphetamine from co-defendant Humberto Torres-Rodriguez, who was cooperating with law enforcement. Becerra was arrested following the purchase. Defendant was arrested while he waited in the car outside after dropping of Becerra. The Government asserts the GPS tracker warrant investigation stemming from the one pound of methamphetamine was separate from the investigation involving the 40 pounds of methamphetamine. Indeed, the Government asserts that law enforcement learned of the GPS tracker only the day of Defendant's arrest, sometime before he arrived at the hotel.

         The Government asserts that Defendant is charged “solely upon the observations and seizures of the police on or about April 5^th” so the March controlled buy information is irrelevant to Defendant's prosecution. In response, Defendant merely asks for Defendant's recorded statements to the informant.

         Rule 16(a)(1)(B) requires the Government to disclose “any relevant written or recorded statement by the defendant” if it is within the Government's possession, custody, or control. While the Government has indicated it does not intend to call the informant as a witness because that informant's relationship to Defendant involves crimes separate from those charged in this proceeding, the Government has no basis for withholding Defendant's statements to that informant. Defendant's statements are relevant because they involved a controlled drug purchase that led to a GPS tracking warrant. The GPS tracking warrant information was later referenced, alongside information obtained at the La Quinta Inn controlled methamphetamine purchase, to secure a search warrant for Defendant's apartment. (Gov't Ex. 2). That later-obtained search warrant led to seizure of 10 pounds of methamphetamine and $30, 000 in U.S. currency. It is of no moment that the original investigation was not related to the later one; the two investigations became intertwined and, thus entangled, Defendant's statements are relevant and must be disclosed under Rule 16(a)(1)(B). The Government may not withhold Defendant's statement from Defendant on the grounds that it was made to an informant. United States v. Flores-Mireles, 112 F.3d 337, 340 (8th Cir. 1997) (applying Rule 16(a)(1)(B) to statements made to informants).

         The Court notes, however, that because the Government indicated it will not call this informant as a witness, it need not disclose the informant's identity. United States v. Hollis, 245 F.3d 671, 674 (8th Cir. 2001) (no obligation to disclose informant's identity where informant did not participate in offense charged and Government stated it did not intend to call the witness at trial). Accordingly, the ...