U.S. v. Lujan

• Decision Date: 14 January 2008
• Docket Number: No. CR 05-924 RB.,CR 05-924 RB.
• Citation: 530 F.Supp.2d 1224
• Parties: UNITED STATES of America, Plaintiff, v. Larry LUJAN, Kacey Lamunyon, and Eugenio Medina, Defendants.
• Court: U.S. District Court — District of New Mexico

530 F.Supp.2d 1224

UNITED STATES of America, Plaintiff, v. Larry LUJAN, Kacey Lamunyon, and Eugenio Medina, Defendants.

No. CR 05-924 RB.

United States District Court, D. New Mexico.

January 14, 2008.

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Paula G. Burnett, Kyle T. Nayback, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, John G. Crews, II, U.S. Attorney's Office, District of New Mexico, Las Cruces, NM, for Plaintiff.

Robert Kinney, Marc H. Robert, Federal Public Defender's Office, Jess R. Lilley, Lilley Law Offices, Michael L. Stout, Carmen E. Garza, Las Cruces, NM, Billy R. Blackburn, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK, District Judge.

On July 10, 2007, the grand jury returned the Third Superseding Indictment (Doc. 144) in this case, charging Defendants Larry Lujan, Kacey Lamunyon and Eugenio Medina with (1) "Kidnapping Resulting in Death," in violation of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 2, and (2) "Tampering with a Witness Resulting in Death," in violation of 18 U.S.C. § 1512(a)(1)(C) and 18 U.S.C. § 2. The Third Superseding Indictment also includes a Notice of Special Findings against Mr. Lujan. The United States filed a Notice of Intent to Seek a Sentence of Death (Doc. 146) against Mr. Lujan on July 12, 2007.

This matter comes before the Court on the following motions:

1. United States' Motion and Incorporated Memorandum Regarding Mental, Health Evidence (Doc. 168, filed Sept. 7, 2007);

2. Defendant Lujan's Motion for Bill of Particulars (Doc. 173, Med September 10, 2007);

3. Defendant Lujan's Motion for Notice by the Government Pursuant to Rule 12(b)(4)(B) and Incorporated Memorandum (Doc. 174, filed 11. September 10, 2007);

4. Defendant Lujan's Motion for Disclosures Specific to Death Penalty Issues (Doc. 175, filed Sept. 9, 2007);

5. Defendant Lujan's Motion for Disclosure of Information Concerning the Decision to Seek the Death Penalty and Incorporated Memorandum (Doc. 176, filed Sept. 10, 2007);

6. Defendant Lujan's Motion for Disclosure of Information Relating to DNA Evidence and Testing and Incorporated Memorandum (Doc. 177, filed September 10, 2007);

7. Defendant Lujan's Motion for Early Disclosure of Material Covered by the Jencks Act or Rule 26.2 of the Federal Rules of Criminal Procedure and Incorporated Memorandum (Doc. 178, filed September 10, 2007);

8. Defendant Lujan's Motion for Disclosure of Exculpatory Information and Incorporated Memorandum (Doc. 179, filed September 10, 2007);

9. Defendant Lujan's Motion for Discovery and Inspection Concerning Government's Use of Informants, Operatives, and Cooperating Individuals and for Disclosure of Exculpatory Evidence Concerning Government's Use of Informants, Operatives, and Cooperating Individuals (Doc. 180, filed September 10, 2007);

10. Defendant Lujan's Motion for Disclosure of Information Concerning the Reliability and Integrity of the Government's Investigation and Incorporated Memorandum (Doc. 181, filed September 10, 2007);

11. Defendant Lujan's Motion for Discovery and Inspection of Matters Pursuant to Rule 16 (Doc. 183, filed September 10, 2007);

12. Defendant Lujan's Motion for Disclosure of Rough Interview Notes and Incorporated Memorandum (Doc. 184, filed September 10, 2007);

13. Defendant Lujan's Motion for Discovery of Information and Materials Concerning Aggravating Sentencing Factors and Incorporated Memorandum (Doc. 185, filed Sept. 10, 2007); and

14. Defendant Lujan's Corrected Motion for Disclosure of Information Concerning "Jailhouse Informants" and Incorporated Memorandum (Doc. 186, filed September 10, 2007).

Defendant Lamunyon moved to join in all discovery motions filed by his co-defendants (Doc. 170), a request I granted. See Order (Doc. 188). On September 27, 2007, the United States filed a Response to Defendant Lujan's Motion for Disclosure of Information Relating to DNA Evidence and Testing and Incorporated Memorandum (Doc. 195). The United States subsequently filed an Omnibus Response (Doc. 198) to address the remaining discovery motions. Mr. Lujan filed replies in support of some of the motions. On December 5, 2007, I heard argument on the motions. At the hearing, Defendant Medina joined in his co-defendants' arguments regarding the motions. The hearing as to the discovery motions pertaining to the capital phase of the trial was continued until December 19, 2007, at which time I heard argument on the capital discovery motions. On January 4, 2008, the United States filed a Supplemental Response to Defendant Lujan's Motion for Disclosure of Information Concerning Aggravated Sentencing Factors and Incorporated Memorandum (Doc. 226). Having considered the motions, briefs, arguments, and relevant authority, I find that the various discovery requests should be granted and denied as discussed herein.

I. OVERVIEW OF GENERAL LAW ON DISCOVERY

Many of the requests in the various motions overlap and rely on more than one legal principle. Therefore, before addressing each of the motions individually, I will provide an overview of the various legal foundations that inform my decisions on each discovery motion.

A. Brady

The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." To establish a Brady violation, the accused must show that (1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material to the defense. See Trammell v. McKune, 485 F.3d 546, 551 (10th Cir.2007). There is no Brady violation where the defendant knew or should have known of the material, exculpatory information or where the information was available to him from another source. United States v. Graham, 484 F.3d 413, 417 (6th Cir.2007). Nevertheless, even where the defendant never requested exculpatory evidence, the government has a duty to volunteer exculpatory evidence. See Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The Constitution, however, does not demand an open file policy. See id. at 437, 115 S.Ct. 1555. See also Smith v. Secretary Dep't of Corrections, 50 F.3d 801, 823 (10th Cir.1995) (noting that Brady does not require prosecution to divulge every possible shred of evidence that could conceivably benefit defendant). "[T]he government typically is the sole judge of what evidence in its possession is subject to disclosure" and it acts at its own peril by failing to comply adequately with an order requiring disclosure of Brady material. United States v. Presser, 844 F.2d 1275, 1281 (6th Cir.1988).

The "touchstone of materiality is a `reasonable probability' of a different result," which exists "when the government's evidentiary suppression `undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Thus, to be "material," a defendant does not need to show that the evidence, if disclosed, would have resulted in his acquittal; rather, he must show only that "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 434-35, 115 S.Ct. 1555. In evaluating a Brady claim, a court must consider the cumulative effect of all material withheld by the government. See id. at 436-37, 115 S.Ct. 1555. The prosecution thus has the responsibility "to gauge the likely net effect of all such evidence and make disclosure when the point of `reasonable probability' is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id. at 437, 115 S.Ct. 1555.

The Constitution, however, "does not grant criminal defendants the right to embark on a `broad or blind fishing expedition among documents possessed by the Government.'" United States v. Mayes, 917 F.2d 457, 461 (10th Cir.1990) (quoting Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)). A defendant's mere allegation that the requested information might be material does not entitle him to an unsupervised search of the government's files. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The Brady rule is not an evidentiary rule that grants broad discovery powers to a defendant, because there "is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). See also United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ("[T]here is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense.") (internal quotations and citations omitted), reversed on other grounds by Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481; Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir.2000) ("Brady does not require a prosecutor to turn over files reflecting leads and ongoing investigations where no exonerating or impeaching evidence has turned up.").

Brady only requires disclosure of information in the government's possession or knowledge, whether actual or constructive. United States v. Beers, 189 F.3d 1297, 1304 (10th Cir.1999); Smith, 50 F.3d at 825 n. 36 (noting that, because district attorney's office had actual knowledge that there was...