United States v. Burton

• Decision Date: 26 January 2015
• Docket Number: No. CR 14–2354 JB.,CR 14–2354 JB.
• Citation: 81 F.Supp.3d 1229
• Parties: UNITED STATES of America, Plaintiff, v. Arthur BURTON, a/k/a “Guero,” and Kevin Folse, a/k/a “Criminal,” Defendants.
• Court: U.S. District Court — District of New Mexico

81 F.Supp.3d 1229

UNITED STATES of America, Plaintiff

v.Arthur BURTON, a/k/a “Guero,” and Kevin Folse, a/k/a “Criminal,” Defendants.

No. CR 14–2354 JB.

United States District Court, D. New Mexico.

Filed Jan. 26, 2015.

Damon P. Martinez, United States Attorney, Joel R. Meyers, Samuel A. Hurtado, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.

Ryan J. Villa, Albuquerque, NM, for the Defendant.

UNSEALED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Sealed Motion to Compel Production of Discovery, filed November 9, 2014 (Doc. 28)(“Motion”). The Court held a hearing on December 5, 2014. The primary issue is whether the Court should compel Plaintiff United States of America to disclose four categories of information: (i) all records related to the investigations that the Federal Bureau of Investigation (“FBI”) or the New Mexico State Police (“NMSP”) conducted of the shooting that occurred on June 4, 2013; (ii) all records relating to the prior drug transactions that Defendant Kevin Folse conducted as a confidential informant (“CI”) for the FBI; (iii) all audio recordings, records, or reports regarding James Ronquillo's post-arrest interview; (iv) numerous FBI policies governing CIs and targets; and (v) all recordings or documentation of FBI Special Agent Kalon Fancher's conversations with Folse and co-Defendant Arthur Burton before June 4, 2013. After securing a number of stipulations and concessions from the United States, the Court will deny the Motion.

First, the Court will deny Folse's request for all records related to the investigations that the FBI and the NMSP conducted of the shooting that occurred on June 4, 2014. The United States has stipulated that: (i) neither Burton nor Ronquillo knew that they were selling to law enforcement officers on June 4, 2013; and (ii) that Fancher has never been criticized, reprimanded, or formally punished for the events that occurred on June 4, 2013. There is no indication that the records that Folse seeks contain any information that is discoverable under rule 16 of the Federal Rules of Criminal Procedure, beyond the information to which the United States has already stipulated. Second, the Court will deny Folse's request for all records relating to the drug transactions that he conducted before June 4, 2013, as a CI for the FBI. The United States has promised that it will disclose all records relating to the drug transaction that Folse conducted on February 4, 2013, because the United States intends to offer evidence and testimony about that transaction at trial. Moreover, the United States has stipulated that: (i) Fancher did not suspect before June 4, 2013, that Folse had either used fake drugs or kept part of the proceeds from the drug transactions that he had set up for the FBI; (ii) Fancher never had a conversation with Folse in which he told Folse not to use fake drugs; (iii) the FBI's protocol with CIs is to count any money that agents give to CIs before giving it to them, and to search CIs before and after the transactions that they set up; and (iv) Fancher followed that protocol for every drug transaction that Folse executed for the FBI. There is no indication that the FBI reports that Folse seeks contain any information that is discoverable under rule 16 beyond that to which the United States has already stipulated. Third, the Court will deny Folse's request for all audio recordings, records, or reports regarding Ronquillo's custodial interview. The United States has said that there is no recording of Ronquillo's interview, and that the only report in its possession regarding that interview is the 302² —which Folse has already received. Fourth, the Court will deny Folse's request for numerous FBI policies governing CIs and targets. Because the United States has stipulated that the FBI policies that Folse possesses from 2005 are substantially similar to the FBI's current policies, and because the United States will not deny or dispute that they are still operative, the policies that Folse seeks are immaterial to his defense and are, therefore, not discoverable under rule 16. Fifth, the Court will deny Folse's request for all audio recordings and documentation of all conversations that Fancher had with Folse and Burton before June 4, 2013. The United States has represented that there are no recordings or documentation for Fancher's conversations with Burton, and the Court cannot order the United States to disclose information that does not exist. Regarding Fancher's conversations with Folse, the United States has said that it would allow Folse to review the following information in Folse's CI file: (i) administrative information—such as authorized illegal activity information and payments that Folse received from and made for the FBI; (ii) everything in Folse's CI file related to the Burton investigation; and (iii) preliminary documents to ensure that Fancher was complying with the FBI's policies for CIs—such as when he first decided to use Folse as a CI, his evaluation of the risk of using Folse as a CI, contacting the state prison for permission to use Folse as a CI, and similar documents. Aside from this information, Folse has not explained to the Court how any additional information regarding Folse's conversations with Fancher is discoverable under rule 16.

FACTUAL BACKGROUND

The United States alleges that, between on or about May 16, 2013, and on or about June 4, 2013, Folse and Burton engaged in a scheme to steal $7,000.00 from the FBI by selling fake cocaine base (i.e., “crack cocaine”) to an undercover law enforcement officer. See Indictment at 2, filed July 10, 2014 (Doc. 1)(“Indictment”). Folse was incarcerated in the Central New Mexico Correctional Facility in Los Lunas, New Mexico (“CNMCF”), throughout the conduct that the Indictment alleges. See Indictment at 2–4. On or about May 16, 2013, Folse made a telephone call from CNMCF to Burton. See Indictment at 2. During this call, Folse instructed Burton to take Folse's money to “Lorraine.” Indictment at 2. Burton agreed. See Indictment at 2. Folse and Burton also discussed their scheme to sell fake drugs. See Indictment at 2. Folse expressed confidence that their scheme would go as planned. See Indictment at 2.

Approximately eight days later, on May 24, 2013, a male subject identified only as “Spaz”—from CNMCF—called Burton. See Indictment at 3. During the call, Spaz told Burton that Folse had made arrangements to execute their scheme. See Indictment at 3. On May 28, 2013, Folse called Burton, explained his scheme to make $7,000.00, and reiterated that Burton should take Folse's share of the scheme's proceeds to Lorraine. See Indictment at 3. Burton agreed. See id. at 3.

On or about May 29, 2013, Spaz—from CNMCF—called Burton and told him that Folse would call him at 7:00³ the following day. See Indictment at 3. On May 30, 2013, Folse called Burton and again told him to take Folse's share of the money to Lorraine. See Indictment at 3. Folse called Burton a second time that day and told Burton to call “Big Homie”—i.e., Special Agent Fancher. Indictment at 3–4. Burton agreed. See id. at 4. On or about June 1, 2013, Folse called Burton to explain that he wanted Burton to deliver his money to “Julio” instead of to Lorraine. Indictment at 4. Burton agreed. See id. at 4. Folse also said that he planned to call Big Homie. See Indictment at 4. On or about June 3, 2013, Folse called Burton and told him to call Big Homie. See Indictment at 4. Burton agreed. See id. at 4. Folse again instructed Burton to give his money to Julio. See Indictment at 4–5. Folse also told Burton that nobody else knew about their scheme and that Burton could trust him. See Indictment at 5.

During a telephone call between Folse and Burton on June 4, 2014, Burton expressed concern to Folse about their scheme and said that he did not trust anyone. See Indictment at 5. Folse assured Burton that nobody involved in the scheme was a law enforcement officer. See Indictment at 5. Folse also reminded Burton to take Folse's money to Julio. See Indictment at 5. That same day, Burton recruited Ronquillo to deliver the fake drugs. See Motion at 3; United States' (Sealed) Response in Opposition to Defendant's Appeal of Detention Order ¶ 8, at 3, filed November 6, 2014 (Doc. 26)(“Opposition”); United States' (Sealed) Notice of Intent to Offer Evidence Pursuant to Rule 404(b) and Request for Pretrial Ruling on the Government's Request to Admit Evidence at 5, filed December 13, 2014 (Doc. 50)(“404(b) Motion”). Ronquillo delivered approximately 207 grams of fake crack cocaine to an undercover police officer—who was acting at the direction of the FBI—in exchange for $7,000.00.See Indictment at 5. The FBI agents on the scene did not arrest Ronquillo when the transaction occurred. See Motion at 3. The agents quickly learned, however, that Ronquillo had given the undercover officer fake drugs. See Opposition ¶ 9, at 3; 404(b) Motion at 5.

FBI Special Agent Lennie Johnson and FBI Task Force Officer Eugene Ethridge followed Ronquillo and Burton in an FBI surveillance vehicle from the site of the transaction. See Opposition ¶ 9, at 3; 404(b) Motion at 5. Although Burton managed to elude the agents, they continued to follow Ronquillo's car. See Opposition ¶ 9, at 3; 404(b) Motion at 5. Ronquillo noticed the FBI surveillance vehicle following him. See Opposition ¶ 9, at 3; 404(b) Motion at 5. Ronquillo believed that they were drug dealers trying to kill him for ripping them off, so he panicked and made a frantic 911 call for police assistance. See Motion at 4; Opposition ¶ 9, at 3; 404(b) Motion at 5. Ronquillo then saw the surveillance vehicle blocking the street in front of him. See Opposition ¶ 10, at 3. He tried to escape by speeding towards the vehicle while Johnson exited the passenger's side and shot at Ronquillo's car to try to stop him from colliding...