United States District Court, D. Minnesota
Winter, Assistant United States Attorney, (for the
Douglas Olson, Assistant Federal Defender, (for Defendant).
E. Rau United States Magistrate Judge
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:
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.
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.
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.
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
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.
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).
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
Government asserts that Defendant is charged “solely
upon the observations and seizures of the police on or about
April 5th” 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.
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).
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