United States v. Harmon

• Decision Date: 10 May 2012
• Docket Number: No. CR 10–1760 JB.,CR 10–1760 JB.
• Citation: 871 F.Supp.2d 1125
• Parties: UNITED STATES of America, Plaintiff, v. Michael HARMON, Defendant.
• Court: U.S. District Court — District of New Mexico

871 F.Supp.2d 1125

UNITED STATES of America, Plaintiff,

v.Michael HARMON, Defendant.

No. CR 10–1760 JB.

United States District Court, D. New Mexico.

May 10, 2012.

Kenneth J. Gonzales, United States Attorney, James R.W. Braun, Sean J. Sullivan, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Jerry A. Walz, Walz and Associates, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant's Motion to Reconsider or Rehear, filed July 15, 2011 (Doc. 72) (“Motion to Reconsider”); (ii) the Defendant's Motion by Way of the Defendant for Withdrawal of Plea Agreement filed on May 20, 2011, filed September 21, 2011 (Doc. 87) (“Motion to Withdraw Plea”); and (iii) the Defendant's Supplemental Motion to Withdraw Plea and to Re–Open Suppression Proceeding, filed December 22, 2011 (Doc. 102) (“Supplemental Motion”). The Court held a hearing on March 9, 2012. The primary issues are: (i) whether the Court should reconsider its Memorandum Opinion and Order, filed June 6, 2011 (Doc. 61) (“MOO”), denying the Defendant's Motion to Suppress and Memorandum in Support Thereof, filed January 14, 2011 (Doc. 40) (“Motion to Suppress”); (ii) whether Plaintiff United States of America had an obligation to disclose, before the suppression hearing on March 28, 2011, evidence Defendant Michael Harmon has recently obtained that he alleges undermines New Mexico Department of Public Safety Motor Transportation Division Officer Hermilo Lucero's credibility; (iii) whether that evidence impacts Lucero's credibility; (iv) whether the Court should reopen the suppression hearing; and (v) whether the Court should permit Harmon to withdraw from his guilty plea. The Court will deny all of Harmon's motions. The Court does not believe the evidence upon which Harmon relies to challenge Lucero's credibility would serve as impeachment evidence such that the Court should reopen the suppression hearing or reconsider its decision to deny his Motion to Suppress. Because the evidence is not exculpatory and has no impeachment value, the United States had no obligation to disclose the evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Even if the evidence is impeachment evidence, Brady v. Maryland did not require the United States to disclose this evidence to Harmon before his suppression hearing or before he entered his guilty plea. Rule 16 of the Federal Rules of Criminal Procedure also did not require disclosure of this evidence, because it was not material to Harmon's defense. Consequently, there is no sound basis for the Court to reconsider its MOO denying the Motion to Suppress. Given that the Court will not reconsider its MOO denying the Motion to Suppress, and that the Court sees no other fair or just reason that would permit Harmon to withdraw from his guilty plea, the Court will not permit him to withdraw his guilty plea.

FACTUAL BACKGROUND

Harmon's argument relies upon some alleged misconduct in which Lucero engaged during the investigation of another case, United States v. Sheridan, No. CR 10–0333. The Court has a limited amount of evidence from that proceeding, specifically a transcript of the traffic stop that occurred in that proceeding. See Transcript of Traffic Stop at 17:1–2 (dated March 18, 2010), filed July 15, 2011 (Doc. 72–1). The Court does not have the video recording from United States v. Sheridan, or any reports or affidavits, generated during the investigation of that case.

At the beginning of the transcript, Lucero related: “I'm going to be on a traffic stop here off of Exit 117 on the frontage road. It looks like a vehicle might be lost here. Unknown 49. I'm checking on it. A Lincoln Navigator, silver in color.” Transcript of Traffic Stop at 2:1–5. The transcript contains a notation that there was a “[d]og barking throughout [the] recording.” Transcript of Traffic Stop at 2:7. Lucero then began speaking to the driver, John Sheridan, in the next portion of the transcript, asking the driver if he is “all right.” Transcript of Traffic Stop at 2:8–9 (“Are you all right? Are you all right?”). The transcript indicates that Sheridan stopped his vehicle on his own because he intended to take “a leak real quick.” Transcript of Traffic Stop at 2:10–11. Lucero then stated: “Well, that's why I was checking on you. I didn't know what was going on.” Transcript of Traffic Stop at 2:12–13. Sheridan said that everything is fine, and Lucero then asked for his driver's license. See Transcript of Traffic Stop at 2:17–20 (“Okay. Let me get a driver's license. It kind of freaked me out. I was like what the—what the heck is this guy doing? Where are you heading?”). Lucero determined that Sheridan was in a rental car and had come from San Francisco, California. See Transcript of Traffic Stop at 2:22–3:7. Lucero states, shortly after asking for Sheridan's license, that he was “just doing a welfare check making sure you were all right,” because the area where the vehicle was stopped was “normally not for commuter traffic.” Transcript of Traffic Stop at 3:12–14.

Lucero then patted down Sheridan to look for weapons. See Transcript of Traffic Stop at 3:24–4:2. Lucero determined that Sheridan had recently flown to San Francisco and was now driving back to Albuquerque, New Mexico; Lucero then asked why Sheridan was traveling in this manner. See Transcript of Traffic Stop at 4:18–5:12. Sheridan explained that he was planning on taking a vacation, but stated that his girlfriend in Albuquerque was sick and that they have rare birds—specifically parrots—that required some attention. See Transcript of Traffic Stop at 4:20–5:7. As Sheridan was about to leave, Lucero inquired whether he could ask Sheridan more questions, and Sheridan responded that he was in a hurry and could not answer more questions. See Transcript of Traffic Stop at 6:11–14. Lucero then stated that he was confused about Sheridan's travel plans, and asked him to explain when he left San Francisco and how long he was there. See Transcript of Traffic Stop at 6:15–7:2. Sheridan asserted that he stayed in San Francisco for a day until he heard that his girlfriend was sick and then left later in the day, on a Thursday. See Transcript of Traffic Stop at 6:23–7. Sheridan related that he planned on staying in San Francisco until Monday, that he has relatives in San Francisco, and that he used to live there. See Transcript of Traffic Stop at 7:24–8:4. Sheridan represented that his girlfriend did not join him on the trip to San Francisco, because she is in medical school. See Transcript of Traffic Stop at 8:5–8. Sheridan stated that his girlfriend's illness made her bedridden and that she could not feed the rare birds. See Transcript of Traffic Stop at 9:5–11.

After talking with Sheridan, Lucero asked permission to search the vehicle on the basis that Lucero suspected that narcotics were present; Sheridan initially refused to give permission, because he was in a hurry. See Transcript of Traffic Stop at 9:23–10:4. Lucero said that he understood, but stated that he felt that “everything you're telling me, to be honest with you, I think is a bunch of crap because you should have just flown back to Albuquerque” rather than make an automobile trip in the manner Sheridan explained. Transcript of Traffic Stop at 10:7–10. Sheridan said that there were no flights available until Monday. See Transcript of Traffic Stop at 10:14–15. Lucero stated that he “still [thought] there's some type of criminal activity” occurring, and then asked again if he could search the vehicle. See Transcript of Traffic Stop at 10:16–21. The transcript indicates that several statements that Sheridan made are inaudible, but he appears to have generally refused consent to search the vehicle before eventually permitting Lucero's dog to sniff the vehicle for narcotics. See Transcript of Traffic Stop at 10:20–14:6 (“Let him take a look.”). Lucero told Sheridan that he is not under arrest, but then relates that his dog “alert[ed] to the presence of some illegal—odor of illegal narcotic.” Transcript of Traffic Stop at 14:20–25. Sheridan and Lucero then argued about the accuracy of the dog alerting to drugs being in the vehicle. See Transcript of Traffic Stop at 15:1–14. Lucero told Sheridan that he is not free to leave until Lucero can confirm or dispel whether there are drugs in the vehicle. See Transcript of Traffic Stop at 15:11–14. Lucero then related that some delay will occur, because he needed to wait for another officer to conduct a full search. See Transcript of Traffic Stop at 16:2–9. After Lucero returned to his dispatch radio, he stated the following:

Rick? It's, Mary 118. Hey, do I have another unit heading this way or—who is it? Oh, okay. A Laguna unit is going to be here? Yeah, I—the reason being is this is—this is—don't put in the CA, but this is a—a whisper stop from DEA and you guys gave me the rule (inaudible) telling me and I can't really search without somebody else here and—all right. Thanks.

Transcript of Traffic Stop at 16:23–17:5.

PROCEDURAL BACKGROUND

The Court will briefly recount the arguments made to suppress the evidence in the United States v. Sheridan case. It is necessary to do so to properly decide the issues Harmon raises in his motions. The Court will then recount the procedural history of this case.

1. Suppression Proceedings in United States v. Sheridan.

In that case, Sheridan filed a motion to suppress the evidence obtained during a traffic stop. See United States v. Sheridan, No. CR 10–0333 JC, Defendant's Motion to Suppress and Memorandum in Support Thereof at 1, filed March 18, 2010 (Doc. 26) (D.N.M.) (“Sheridan Motion to Suppress”). The Sheridan Motion to Suppress attaches a partial transcript that transcribes the audio portion of the video footage of the traffic stop in that case, but attaches no other pertinent exhibits, such as a police report. See She...