307 F.R.D. 572 (D.N.M. 2015), CIV 13-0708 JB/LAM, United States v. 2121 Celeste Rd. SW

Docket NºCIV 13-0708 JB/LAM
Citation307 F.R.D. 572
Opinion JudgeJames O. Browning, UNITED STATES DISTRICT JUDGE.
Party NameUNITED STATES OF AMERICA, Plaintiff, v. 2121 CELESTE ROAD SW, ALBUQUERQUE, NEW MEXICO, Defendant, and JERRY L. PADILLA, III; JERRY L. PADILLA, JR.; and CRUZ J. FRAIRE, Claimants
AttorneyFor Plaintiff: Damon P. Martinez, United States Attorney, Joel R. Myers, Stephen R. Kotz, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico. For Cruz J. Fraire, Claimant: Jason Bowles, Bowles Law Firm, Albuquerque, New Mexico; Robert J. Gorence, Gorence &...
Case DateMay 13, 2015
CourtUnited States District Courts, 10th Circuit, District of New Mexico

Page 572

307 F.R.D. 572 (D.N.M. 2015)

UNITED STATES OF AMERICA, Plaintiff,

v.

2121 CELESTE ROAD SW, ALBUQUERQUE, NEW MEXICO, Defendant, and JERRY L. PADILLA, III; JERRY L. PADILLA, JR.; and CRUZ J. FRAIRE, Claimants

No. CIV 13-0708 JB/LAM

United States District Court, D. New Mexico

May 13, 2015

For Plaintiff: Damon P. Martinez, United States Attorney, Joel R. Myers, Stephen R. Kotz, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico.

For Cruz J. Fraire, Claimant: Jason Bowles, Bowles Law Firm, Albuquerque, New Mexico; Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, New Mexico.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court on the Motion for Finding of Contempt and to Compel Production and for Sanctions, filed February 12, 2015 (Doc. 24)(" Motion" ). The Court held a hearing on April 9, 2015. The primary issues are: (i) whether a party can use a subpoena under rule 45 of the Federal Rules of Civil Procedure to obtain discovery from a party; (ii) whether Claimant Cruz J. Fraire can obtain all information in the Federal Bureau of Investigation's investigative file pertaining to the Los Padillas Gang, Claimant Jerry L. Padilla, III, and Fraire (the " Los Padillas File" ) by subpoenaing Laura A. Schwartzenberger, an FBI Special Agent; (iii) whether Fraire should have filed a rule 34 motion to compel the Plaintiff United States of America to produce the Los Padillas File instead of the Motion; (iv) whether the Court will order the United States to produce the Los Padillas File; and (v) whether the Court will impose discovery sanctions on the United States for failing to produce the Los Padillas File. The Court will deny the Motion in part and grant it in part. First, a party can use a subpoena under rule 45 to obtain discovery from a party. Second, Fraire cannot obtain the Los Padillas File by subpoenaing Schwartzenberger, because the file is not in her possession, custody, or control. Third, rather than filing the Motion, Fraire should have filed a rule 34 motion to compel the United States to produce the Los Padillas file. Fourth, the Court will order the United States to: (i) personally double-check the Los Padillas File to ensure that the United States has produced everything in the file related to Fraire; (ii) produce all of the information in the file created or dated before March 22, 2011; and (iii) produce all of the evidence that the United States intends to introduce at trial to establish that Fraire knew about the drug-trafficking operations at the Property. Fifth, and finally, the Court will not order any discovery sanctions against the United States for failing to produce the Los Padillas File, because Fraire's request was overly broad and he improperly subpoenaed Schwartzenberger.

FACTUAL BACKGROUND

The Court takes its facts from the Verified Complaint for Forfeiture In Rem, filed August 1, 2013. See Doc. 1 (" Complaint" ). Beginning in December, 2008, the Los Padillas Drug-Trafficking Organization (" Los Padillas DTO" ) used a parcel of real estate located at 2121 Celeste Road SW, Albuquerque, New Mexico, 87105 (the " Property" ), to facilitate illegal drug trafficking. Complaint ¶ 6, at 2. Most members of the Los Padillas DTO are also members of the Los Padillas Gang -- a criminal organization that distributes methamphetamine, heroin, cocaine, and marijuana in the Albuquerque area. See Complaint ¶ 6, at 2. Claimant Jerry L. Padilla, Jr. runs the Los Padillas Gang, and his son, Jerry L. Padilla, III, is a Los Padillas Gang member. See Complaint ¶ 7, at 2. The Property is located next to a business that Los Padillas Gang members own and operate. See Complaint ¶ 7, at 3. Padilla, III resided at the Property throughout the events that the Complaint alleges. See Complaint ¶ 7, at 3.

On March 6, 2009, an undercover police officer from the Albuquerque Police Department (" APD" ) and a confidential human source (" CHS-1" ) executed a controlled purchase of cocaine from Padilla, Jr. Complaint ¶ 8, at 3. Before the purchase, CHS-1 called Padilla, Jr. to discuss purchasing four ounces of cocaine. See Complaint ¶ 8, at 3. Padilla, Jr. told CHS-1 that he would prepare the cocaine and call CHS-1 when it was ready. See Complaint ¶ 8, at 3. Thereafter, Padilla, Jr. called CHS-1 and told CHS-1 that he wanted to meet at the Property. See Complaint ¶ 8, at 3. CHS-1 and Padilla, Jr. then changed the meeting location to a gas station near the intersection of Isleta Boulevard and Malpais Road in Albuquerque. See Complaint ¶ 8, at 3. CHS-1 and the undercover officer arrived at the gas station, where CHS-1 gave Padilla, Jr. $1,500.00 and promised to pay him an additional $2,000.00; in exchange, Padilla, Jr. received four ounces of cocaine. See Complaint ¶ 8, at 3.

On March 11, 2009, Padilla, Jr. called CHS-1, and said that he could meet CHS-1 in fifteen to twenty minutes at a restaurant near the intersection of Gibson Boulevard and Wilmore Drive in Albuquerque. See Complaint ¶ 9, at 3. FBI agents then gave CHS-1 $2,000.00 to pay Padilla, Jr. the balance of the money that CHS-1 owed Padilla from the March 6, 2009, cocaine transaction. See Complaint ¶ 9, at 3. When CHS-1 met with Padilla, Jr., CHS-1 gave Padilla, Jr. the money, and Padilla, Jr. " fronted" 1 CHS-1 another four ounces of cocaine. Complaint ¶ 9, at 3.

On March 19, 2009, Padilla, Jr. called CHS-1 to offer CHS-1 four more ounces of cocaine. See Complaint ¶ 10, at 3. The two agreed to meet at the Property, where CHS-1 gave Padilla, III $3,500.00 in exchange for four ounces of cocaine. See Complaint ¶ 10, at 3-4. While inside the Property, CHS-1 saw a large amount of money and several plastic bags containing similar quantities of cocaine on the kitchen table. See Complaint ¶ 10, at 4. On April 17, 2009, CHS-1 and the undercover officer met with Padilla, Jr. to pay him $3,500.00 for the cocaine that CHS-1 received on March 19, 2009.2 See Complaint ¶ 10, at 4. CHS-1 and the undercover officer met Padilla, Jr. inside of the officer's vehicle at the parking lot of a restaurant at 5324 4th Street in Albuquerque. See Complaint ¶ 10, at 4.

In November, 2009, FBI agents conducted extensive surveillance of the Property and the business next door. See Complaint ¶ 12, at 4. The following facts are the agents' observations during the surveillance operation.

On November 9, 2009, at approximately 1:53 p.m., a teal-green vehicle pulled into the Property's driveway. See Complaint ¶ 14, at 5. The vehicle left the Property approximately twenty-four minutes later, at 2:17 p.m. See Complaint ¶ 14, at 5. At approximately 2:53 p.m., an unknown male drove a tractor in the area around the business that sits next to the Property. See Complaint ¶ 13, at 4. At approximately 2:55 p.m., two unknown individuals walked around the tractor, and the tractor pushed a silver car " into the business area." 3 Complaint ¶ 13, at 4-5. The tractor then dug a hole in the business area around where the silver car was parked previously. See Complaint ¶ 13, at 5.

On November 9, 2009, at approximately 4:21 p.m., an unknown male was in the Property's backyard. See Complaint ¶ 13, at 5. The male opened the gate to the business next to the Property, walked to the tractor, and drove it into the Property's backyard. See Complaint ¶ 13, at 5. Another unknown individual closed the gate to the business. See Complaint ¶ 13, at 5. At that point, at least three unknown individuals were in the Property's backyard. See Complaint ¶ 13, at 5. The tractor then began digging a hole beside a shed on the backyard's eastern side. See Complaint ¶ 13, at 5. One of the individuals was operating the tractor; the other two individuals were standing nearby. See Complaint ¶ 13, at 5.

At approximately 4:34 p.m., the tractor was covering up the hole. See Complaint ¶ 13, at 5. By approximately 4:38 p.m., the tractor had completely filled the hole. See Complaint ¶ 13, at 5. The tractor then drove to the backyard's northern side and dug another hole there. See Complaint ¶ 13, at 5. A second individual appeared to be supervising the digging, and a third individual was walking toward the Property. See Complaint ¶ 13, at 5. The tractor filled in the second hole, smoothed the hole's surface with the tractor's bucket, and then rolled over the hole with the tractor's treads. See Complaint ¶ 13, at 5. At approximately 4:46 p.m., an individual opened the gate to the business, the tractor drove back into the business area, and the individual operating the tractor entered the Property. See Complaint ¶ 13, at 5. At approximately 5:04 p.m., a dark-green or blue sports utility vehicle pulled into the Property's driveway, the Property's garage door opened, and an unknown individual walked to the vehicle. See Complaint ¶ 14, at 5. Shortly thereafter, the vehicle drove away from the Property. See Complaint ¶ 14, at 5.

On November 10, 2009, at approximately 1:44 p.m., a silver car drove up to the gate surrounding the Property and parked outside of the gate. See Complaint ¶ 14, at 5. Two unknown males got out of the silver car and walked east to the business' gate. See Complaint ¶ 14, at 5-6. Approximately nineteen minutes later, at 2:03 p.m., two individuals were near the fence outside the business -- one of whom was digging. See Complaint ¶ 14, at 5-6. A dark-colored sedan then left the Property, and the silver car followed it. See Complaint ¶ 14, at 6.

On November 24, 2009, at approximately 3:01 p.m., a small, white or gray truck parked next to the business. See Complaint ¶ 14, at 6. At least one unknown individual left the truck and walked into the business while two unknown individuals walked into the garage in the business' outer section. See...

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12 practice notes
  • Landry v. Swire Oilfield Services, L.L.C., 010318 NMDC, Civ. 16-0621 JB/LF
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • January 3, 2018
    ...their concession that ADP Payroll has the data requested. See United States v. 2121 Celeste Road SW, Albuquerque, N.M., 307 F.R.D. 572, 590 (D.N.M. 2015)(Browning, J.)(“[C]ourts have broadly construed control as ‘the legal right, authority, or practical ability to&#......
  • 813 S.E.2d 79 (W.Va. 2018), 17-0206, Smith v. Gebhardt
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • April 6, 2018
    ...is not used to circumvent rule 34 or the other discovery rules." United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572, 588 (D.N.M. 2015). The court in Mortgage Information Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2002), provided the ......
  • 813 S.E.2d 79 (W.Va. 2018), 17-0206, Smith v. Gebhardt
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • April 6, 2018
    ...is not used to circumvent rule 34 or the other discovery rules." United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572, 588 (D.N.M. 2015). The court in Mortgage Information Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2002), provided the ......
  • McCall v. State Farm Mutual Automobile Insurance Co., 072617 NVDC, 2:16-cv-01058-JAD-GWF
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Nevada
    • July 26, 2017
    ...on another party, it cannot be used to circumvent Rule 34 or the other discovery rules. United States v. 2121 Celeste Road SW, 307 F.R.D. 572, 588 (D.N.M. 2015). See also Mortgage Information Services, Inc. v. Kitchens, 210 F.R.D. 562, 565 (W.D. N.C. 2002). The cour......
  • Request a trial to view additional results
12 cases
  • Landry v. Swire Oilfield Services, L.L.C., 010318 NMDC, Civ. 16-0621 JB/LF
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • January 3, 2018
    ...their concession that ADP Payroll has the data requested. See United States v. 2121 Celeste Road SW, Albuquerque, N.M., 307 F.R.D. 572, 590 (D.N.M. 2015)(Browning, J.)(“[C]ourts have broadly construed control as ‘the legal right, authority, or practical ability to&#......
  • 813 S.E.2d 79 (W.Va. 2018), 17-0206, Smith v. Gebhardt
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • April 6, 2018
    ...is not used to circumvent rule 34 or the other discovery rules." United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572, 588 (D.N.M. 2015). The court in Mortgage Information Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2002), provided the ......
  • 813 S.E.2d 79 (W.Va. 2018), 17-0206, Smith v. Gebhardt
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • April 6, 2018
    ...is not used to circumvent rule 34 or the other discovery rules." United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572, 588 (D.N.M. 2015). The court in Mortgage Information Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2002), provided the ......
  • McCall v. State Farm Mutual Automobile Insurance Co., 072617 NVDC, 2:16-cv-01058-JAD-GWF
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Nevada
    • July 26, 2017
    ...on another party, it cannot be used to circumvent Rule 34 or the other discovery rules. United States v. 2121 Celeste Road SW, 307 F.R.D. 572, 588 (D.N.M. 2015). See also Mortgage Information Services, Inc. v. Kitchens, 210 F.R.D. 562, 565 (W.D. N.C. 2002). The cour......
  • Request a trial to view additional results