United States v. Garrison

• Decision Date: 03 December 2015
• Docket Number: Criminal Case No. 14–cr–231–WJM
• Citation: 147 F.Supp.3d 1173
• Parties: United States of America, Plaintiff, v. 1. Ricky Garrison, 4. Francisco Aguilar, 5. Simeon Ramirez, 9. Archie Poole, 11. Melvin Turner, 15. Robert Painter, Latoya Wimbush, Defendants.
• Court: U.S. District Court — District of Colorado

147 F.Supp.3d 1173

United States of America, Plaintiff,

v.1. Ricky Garrison, 4. Francisco Aguilar, 5. Simeon Ramirez, 9. Archie Poole, 11. Melvin Turner, 15. Robert Painter, Latoya Wimbush, Defendants.¹

Criminal Case No. 14–cr–231–WJM

United States District Court, D. Colorado.

Signed December 3, 2015

Zachary Hugh Phillips, U.S. Attorney's Office, Denver, CO, for Plaintiff.

Robert William Pepin, Office of the Federal Public Defender, Denver, CO, for Defendants.

ORDER ON PENDING MOTIONS

William J. Martínez, United States District Judge

Before the Court are seven motions seeking discovery from the Government and two motions attacking the indictment. For the reasons explained below, the Court denies all of the discovery motions (either as moot, premature, or insufficiently supported). The Court reserves ruling on the motions attacking the indictment in light of its Order on Procedures. (See ECF No. 99 ¶ 8(a).)

I. BACKGROUND

This sixteen-defendant case principally involves what the Government alleges to be a large conspiracy to distribute cocaine, heroin, and methamphetamines. (See ECF No. 10.) The Government used a number of Title III wiretaps while investigating the alleged conspiracy. According to Defendant Garrison, the Government obtained these wiretaps by representing that they would be used to investigate “large-scale drug distribution and/or the Gangster Disciples street gang.” (ECF No. 611 at 2.)

II. MOTION FOR SPECIFIC DISCOVERY (ECF No. 611)

A. Garrison's Requests

Garrison's 60–page Motion for Specific Discovery is extensive and reminiscent of the wide-ranging, often questionably relevant requests for production typically seen in civil litigation. His requests may be summarized as follows:

• essentially all information the Government has developed regarding the Gangster Disciples since January 2012, including information developed for other prosecutions and information about confidential informants (ECF No. 611 at 29–35);

• information in the Government's possession about the Aurora Police Department's investigation of a homicide (allegedly linked to Garrison) of a confidential informant (id. at 35–38);

• all information obtained by the Government regarding “Operation Red Dawn,” a local law enforcement investigation that apparently partially overlapped with the Government's investigation of the Gangster Disciples (id. at 38–41);

• documents generated with respect to the Government's various confidential informants used in the Gangster Disciples investigation (id. at 39–48);

• information regarding whether investigating agencies employed “parallel construction,” an alleged tactic by which law enforcement agencies prepare two files for each investigation, one that tells the entire story of the investigation, and another that has been “sanitized” of sensitive information (id. at 48–51);

• the results of any analysis performed on raw data (i.e., phone numbers) obtained through pen registers, trap and trace devices, or administrative subpoena of phone records (id. at 51–54);

• all information regarding any member of the Gangster Disciples, and regarding any individual named in a wiretap application whose communications would be intercepted, contained in any database on which the Government relied, and all analyses of information gleaned from these databases (id. at 54–60).

Garrison seeks this information in hopes of gathering more evidence to support an anticipated “motion to suppress [the] evidence obtained pursuant to the Title III interceptions.” (ECF No. 611.)

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs electronic eavesdropping by law enforcement officials. See 18 U.S.C. §§ 2510

–22. Given the extraordinary danger that wiretaps pose to Fourth Amendment rights to be free from unreasonable searches and seizures, wiretaps are not to be routinely employed in criminal investigations. United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Indeed, to obtain a wiretap warrant, the Government must first satisfy a court that numerous prerequisites have been met, most of which go beyond what would be necessary to establish traditional probable cause for a search warrant. See generally 18 U.S.C. § 2518.

For each category of information that Garrison requests, he argues that it would assist him to establish the Government's alleged failure to satisfy various Title III prerequisites, thus supporting a motion to suppress. However, although numerous cases discuss a court's obligations when a defendant moves to suppress on these grounds, Garrison does not cite—and this Court could not find—any case regarding whether a defendant is entitled to discovery to assist him or her in developing such a motion. This is all the more telling given that Garrison's motion contains a 20–page “Law” section describing (in the abstract) various legal grounds for discovery and suppression, yet none of Garrison's cited authorities mention discovery for purposes of preparing a Title III challenge. Moreover, in the ensuing 31 pages of specific requests and explanations for those requests, the Court counts a total of nine citations to legal authority—and again, none relates to discovery for purposes of preparing a Title III challenge.

This does not necessarily mean that a defendant may never obtain such discovery. Nonetheless, “[t]here 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)

. The Government's pretrial discovery obligations instead rest largely on four authorities: (1) Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that due process requires prosecutors to disclose to defendants potentially exculpatory evidence; (2) Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), which holds that exculpatory evidence includes evidence affecting witness credibility if the witness's reliability will likely determine guilt or innocence; (3) Federal Rule of Criminal Procedure 16, which establishes a number of specific discovery obligations; and (4) the Court's inherent authority to order discovery in certain circumstances. Each will be discussed in turn.

B. Brady

and Giglio

To the extent Garrison claims that the information he requests must be disclosed under Brady

or Giglio, the Government affirms that it is aware of its obligations under those cases, that it has already supplied the relevant information in its possession, and that it “will continue to provide the materials required by these cases and subsequent decisions.” (ECF No. 678 at 1–2.) The Court has no reason to doubt this assertion.

Garrison nonetheless appears to be arguing that much of what he now requests somehow falls under Brady

or Giglio and should be disclosed. For example, Garrison argues at least three times, without citation to authority, that certain information “must be provided because it is favorable to the defense.” (ECF No. 611 at 31, 40, 44–45.) Assuming Garrison intends this as a reference to Brady or Giglio, his argument fails. In all three instances, Garrison requests information that, if it exists, might be “favorable” to his planned wiretap challenge, depending on what the information actually reveals. But Brady and Giglio do not address all forms of information that might be helpful to a wiretap challenge. Rather, those cases focus on information favorable to the accused with respect either to guilt or punishment.

More broadly, Garrison also asks this Court to hold that Brady

requires disclosure of all information that might simply be helpful to him in any strategy he might pursue. (ECF No. 611 at 9.) Out of respect for the rule of law and the goal of fair adjudication, out of respect for the dignity of the defendant, and recognizing the typical asymmetry of information between the Government and the defendant, the Court strongly encourages the Government to adopt this approach. To a small extent, the United States Attorney's Office for the District of Colorado has already done so. (See id. at 27–28 (quoting the USAO–CO's office policies manual regarding criminal discovery).) But this is not the Brady

standard, which focuses only on “evidence favorable to an accused ... where the evidence is material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. 1194.

In one instance, Garrison argues that a specific category of information “is Giglio

material.” (ECF No. 611 at 60.) Garrison refers to all information contained in any database on which the Government relied when performing the investigation that led to the current indictment about either the Gangster Disciples or any individual named in a wiretap application whose communications would be intercepted. (See

id. at 54–60.) Garrison does not explain how any of this would necessarily be Giglio material, i.e., material that bears on the credibility of a witness. Garrison's claim is entirely speculative. Of course, if the Government has gleaned Giglio (or Brady ) material from these databases, the Government must timely produce that material. But the Government has no obligation to produce all database-related information based on Garrison's speculation that he might discover what he considers to be Giglio material.

Accordingly, the Court finds no basis under Brady

or Giglio to order the Government to disclose any of the material requested in Garrison's Motion for Specific Discovery.

C. Rule 16

Federal Rule of Criminal Procedure 16(a)

requires the Government to produce various categories of documents and information upon the defendant's request. Garrison, however, does not invoke Rule 16(a). To the contrary, he states that “[t]he material requested herein [i.e., in his Motion for Specific Discovery] is not specifically addressed by Federal Rule of Criminal Procedure 16,” but the Court may nonetheless order its production through the Court's “inherent authority.” (ECF No. 611 at 12.) The Court will therefore move on to a...