U.S. v. Castro, Crim. No. 06-293(NG).

• Decision Date: 22 May 2007
• Docket Number: Crim. No. 06-293(NG).
• Citation: 502 F.Supp.2d 218
• Parties: UNITED STATES of America, Plaintiff, v. Raquel CASTRO and Samuel Castro-Collado, Defendants.
• Court: U.S. District Court — District of Puerto Rico

502 F.Supp.2d 218

UNITED STATES of America, Plaintiff, v. Raquel CASTRO and Samuel Castro-Collado, Defendants.

Crim. No. 06-293(NG).

United States District Court, D. Puerto Rico.

May 22, 2007.

Vernon Benet Miles, United States Attorney's Office, San Juan, PR, for Plaintiff.

Joannie Plaza-Martinez, Joseph C. Laws, Federal Public Defender's Office, Hato Rey, PR, Carlos E. Beck, Carlos Beck Law Firm, Guaynabo, PR, for Defendants.

ORDER RE: SANCTIONS

GERTNER, District Judge.

This case raises serious concerns about the way the United States Attorney's Office fulfills its discovery obligations.

The case against the defendants, Raquel Castro (hereinafter "Castro") and Samuel Castro-Collado (hereinafter "Castro-Collado") began as an investigation by the Police of Puerto Rico ("POPR"). On July 30, 2006, Jose L. Gonzalez Otero, the victim, who was seriously hurt, reported a carjacking. POPR authorities were the first responders. Plainly, their investigation of the crime scene was critical: They photographed and gathered physical evidence, including a garden tool with blood stains on it, the putative weapon. They interviewed the victim and the defendant Raquel Castro. They conducted a lineup in which the victim had apparently identified Samuel Castro-Collado. They did forensic testing of the materials they had gathered and generated myriad reports.

By August 25, 2006, the federal government took over the case, and by September 13, 2006, the defendants were indicted for carjacking, in violation of 18 U.S.C. § 2119(2), use of a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and possession of a firearm by an alien, in violation of 18 U.S.C. § 921(a)(3).¹

The Assistant United States Attorney ("AUSA") represented over and over again to counsel and to the Court that he had met his discovery obligations and indeed, that the case was ready for trial. The problem was that the AUSA's representations were not true. Significant information generated by the POPR and municipal police investigation — including exculpatory information — had never been shared with the federal authorities, much less turned over to the defense. Decisions with potentially serious legal consequences were made without the prosecutor having any idea, much less any input — including allowing the car in which the carjacking took place to be returned to its owner and sold before the defense had access to it.

Defendants filed several motions for sanctions (document ## 51, 65, 68, 76). Such motions are ALLOWED IN PART AND DENIED IN PART.

I held a hearing on March 14, 2007, to find out how it happened that the case had advanced so far — to the very eve of trial for one defendant, a possible guilty plea for the other — without having the government meeting its most fundamental discovery obligations under the Federal Rules and the Constitution.

The issue is a significant one. United States Attorneys' offices across the country are taking over state prosecutions of crimes for which there is concurrent jurisdiction. Substantial federal penalties hang in the balance. Defendants are obliged to make critical decisions about their cases, and, in the District of Puerto Rico, frequently face a firm plea or trial deadline. They have to rely on the government's timely compliance with its obligations. Fairness cannot depend upon the happenstance of the defense investigation, as it did in this case — that one of the redacted documents the government produced happened to have included a state complaint number, that the defense investigator happened to be able to gain access to files because state police officers happened to cooperate with her. If the federal government is going to federalize state crimes, and necessarily rely on state law enforcement efforts, it must have all the information from state investigatory files on which those prosecutions are based and share them with the defense where the law requires.

After a hearing, and after briefing by both sides, I find that the AUSA had plainly violated both Federal Rule 16 of Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, while I do not find bad faith in that violation, I do find stunning negligence on the part of the AUSA and the FBI agents assigned to this case. The question is what remedy is appropriate. The defendants have called for dismissal of the charges, in part out of their indignation over the government's failures. With one exception, they point to no actual prejudice since the trial has been continued to allow the government to meet its obligations. The only issue which raises serious concerns about prejudice involves the sale of the car in which the carjacking occurred before the defense was given access to it. However, since fundamental discovery had not been exchanged as of the time of the hearing, there was no way of discerning the significance of the car's sale — whether any and all trace evidence had been fully recovered, whether the defense can demonstrate that potentially exculpatory materials had been destroyed.

I certainly share `defendants' indignation about the government's behavior. However, as I describe below, the law requires me to find the "least severe sanction" to accomplish the desired results. United States v. Sarcinelli, 667 F.2d 5 (5th Cir. 1982); United States v. Garrett, 238 F.3d 293 (5th Cir.2000). As a general matter, dismissal is not appropriate where a continuance of the trial is adequate to remedy the problem. A telephone conference will be held on May 23, 2007, to set a new trial date. The parties will brief the issue of the car with defendants' brief due by May 31, government to respond by June 8. Any and all pending motions will be heard during the week of June 18, 2007.

I. FACTS-THE GOVERNMENT'S REPRESENTATIONS

The government made the following representations both to the Court and to counsel that were not true:

To the Court: On October 18, 2006, the AUSA represented that discovery had been provided "except for certain x-rays of the victim and a statement given by Raquel Castro to state and federal officers." No doubt based on that representation, the parties entered plea negotiations. On November 15, 2006, the docket notes that "[d]iscovery has been provided." The government was given "15 days to circulate plea offers" with a "[p]lea deadline of 30 days after plea offers are circulated," or January 2, 2007. On January 3, 2007, the docket reflected that "disc. has been provided," but that counsel for Castro-Collado requested "additional discovery," as a result of which the plea deadline was extended.

To Counsel: On September 5, 2006, counsel sent a discovery request letter. On October 11 and November 8, 2006, counsel received discovery packages containing a radiology report of the victim, a few photographs, a one page document with multiple redactions concerning the identification of Castro-Collado, several documents dealing with the investigation of the vehicle and the criminal record of Castro-Collado. Defendant pressed with a second discovery request on February 9, 2007, again asking for exculpatory and/or impeachment evidence including (1) "all local police reports prepared regarding the complaint filed by the alleged victim and any investigation developed by the local police ... including but not limited to the date when the alleged victim made a complaint ... to law enforcement officers," (2) "any physical evidence including but not limited to photographs that had been seized as part of the investigation of the case ...," (3) a determination of "whether fingerprints, hair, saliva, blood, or any type of forensic evidence was collected" together with any reports showing where and when they were collected and statements of the victim, witness statements. Trial was set for March 12, 2007.

The government represented to the Court at a telephone conference on March 1, 2007, that everything had been provided. It was ready for trial, it announced, even providing the Court with an exhibit list. And, in response to the defendants' motion to compel, it reiterated that it had provided (document # 46): (1) all reports in the government's possession; (2) all physical and forensic evidence — "if in existence or in the government's possession"; (3) all statements of the defendant or of the victim "if in existence or in the government's possession." It added that as of March 5, 2007, perhaps a week before the scheduled trial, the "government continues to investigate this matter and is aware of its ongoing obligation to provide discoverable evidence to the defendants." On March 8, 2007, the government turned over some local police reports.

The government's representations were simply not true on a number of levels:

First, in the materials that had been provided to the defendants, the government had redacted information without any colorable basis for doing so. In the very important report dealing with the victim's identification of Samuel Castro-Collado, the government blacked out the names of law enforcement witnesses to the identification procedures. And again, in the document regarding the interview of Raquel Castro, in which she waived her Fifth Amendment rights, the government redacted local and federal law enforcement officials who had been present. In each case — witnesses to an identification, witnesses to the waiver of Fifth Amendment rights — the redacted information was critical on the question of whether constitutional requirements were met. In the records of the victim, the government excised the names of the doctors who had attended him. In the document dealing with the vehicle, the government excised all information about the address of the driver (who was, after all, the victim) and his birth date.

Second, the government was apparently not even aware V what it had turned over. On March 5, 2007, the government had represented that it had provided...