United States v. Ramos-Burciaga
| Decision Date | 26 April 2018 |
| Docket Number | Case No. 1:17-cr-002236 WJ |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. DULCE ISABEL RAMOS-BURCIAGA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Defendant's Motion for Hearing Concerning Destruction of Evidence, filed November 27, 2017 (Doc. 25), and Defendant's Supplemental Brief, filed January 22, 2018 (Doc. 34). Having considered the parties' written and oral arguments, and applicable law, the Court finds that Defendant's motions are not well-taken and, therefore, are DENIED.
Doc. 12. On August 4, 2017, Defendant was arrested by DEA Agent Jarrell Perry, after exiting a Greyhound bus at the downtown Albuquerque Greyhound station. Doc. 25. Agent Perry allegedly discovered heroin inside Defendant's handbag, after an allegedly consensual search.
Doc. 25-1. The preservation request was sent to the manager of Greyhound's Albuquerque bus terminal, Marie Gomez-Avila, the associate general counsel for Greyhound in Dallas, and local counsel.
The Court granted Defendant's Motion for ex-parte motion for order for subpoena duces tecum on September 20, 2017 (Doc. 20). The subpoena was served on October 19, 2017. Doc. 21. Greyhound responded to the subpoena on November 17, 2017, (Doc. 21) asserting that the local station manager had not preserved the video at the time she received the preservation request. The station manager mistakenly thought that she did not need to preserve video on the basis of a preservation request, and only had to preserve video when she received a subpoena. See Doc. 21. By the time the subpoena was received, the relevant video had been overwritten.
Ms. Marie Avila-Gomez is the customer experience manager for Greyhound Albuquerque, in charge of the Albuquerque terminal. She is responsible for overseeing private security guards at the station, and ensuring Greyhound's security procedures are followed. She is also responsible for responding to preservation requests and copying video surveillance.
All employees go through a security training program. For station managers, the training includes how to engage with local law enforcement and how to engage with local government. This includes training managers on how to ask for assistance from local law enforcement
DEA Agent Jarrell Perry works drug interdiction at the Albuquerque Greyhound and Amtrack terminals. He has no office in the Greyhound station, although he has a key to a conference room at the station. Agent Perry was given the key by Ms. Gomez-Avila.
In April 2017, David Streiff, security operations manager for Greyhound in North America, requested a meeting with DEA agent Perry and Marie Gomez-Avila to discuss the parameters in which law enforcement may operate in the Albuquerque Greyhound terminal. The DEA did not have any input on these procedures. At the meeting, they also discussed the procedure for DEA submitting administrative subpoenas to Greyhound for video recording. Greyhound reiterated that they would need a subpoena for any requests for copies of video surveillance from the DEA. They did not discuss subpoenas or preservation letters submitted by defense counsel. Mr. Streiff expressed that Greyhound wanted the DEA to continue working drug interdiction at the terminal. Mr. Streiff also asked Agent Perry to email a summary of arrests to him, to know what criminal activity occurred on Greyhound property.
At the end of the meeting, Ms. Gomez-Avila asked Mr. Streiff, in a "side-bar", how she should respond to preservation requests and subpoenas for video footage. Mr. Streiff told her that she didn't need to act on hand-delivered "legal documents" until attorneys from Greyhound's corporate office advised her. Based on this conversation, Ms. Gomez-Avila mistakenly thought that she did not need to respond to preservation requests until instructed to do so by Greyhound's legal department. Thus, when she received the preservation request from Defense counsel in this case, she did not preserve the video. Ms. Gomez-Avila thought that "preservation request" meant that responding was optional. The Court finds Ms. Gomez-Avila's explanation credible. Greyhound's legal department has since told Ms. Gomez-Avila to comply with all preservation requests without further instruction.
Mr. Streiff drafted operating procedures that outlined how local and state law enforcement would be allowed to operate in Greyhound terminals. The operating procedures specified where law enforcement could operate at Greyhound terminals, and where they had to be accompanied by Greyhound employees.
Two years ago, Greyhound received a grant from a federal grant program, Over-the-Road Bus Security Grant Program. Greyhound's grant was earmarked for camera surveillance and video operations. Greyhound did not receive any funds over the last two years, and none of the $468,000 grant went to the Albuquerque bus terminal. Greyhound also submitted a security plan to the Department of Homeland Security. This security plan is required in order to apply for TSA grant money. However, there were no formal or informal agreements between Greyhound and the DEA. The DEA does not share in the expense of responding to defense counsel preservation requests, or in any of the security costs borne by Greyhound in Albuquerque.
Agent Perry had previously supplied DVDs for Greyhound's Albuquerque terminal to use to respond to DEA subpoenas for copies of video surveillance. Mr. Streiff has since instructed Ms. Gomez-Avila not to use those DVDs.
On April 11 and 17, 2018 the Court held evidentiary hearings, and heard testimony from Ms. Gomez-Avila, Mr. Streiff, and four DEA agents. At the hearing, the Government objected to certain questions and asserted certain privileges. The Court sustained the objection, pending a determination of whether the Court should hold an in camera hearing.
Defendant argues that her Fifth Amendment due process rights were violated by the destruction of video surveillance of her arrest by Agent Perry.
"A [Fifth Amendment] due process violation occurs when the government fails to preserve constitutionally material evidence." United States v. McIntosh, 573 F. App'x 760, 762 (10th Cir. 2014); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). To establish such a violation, the defendant must show the government: "(1) destroy[ed] evidence whose exculpatory significance [wa]s apparent before destruction; and (2) the defendant ... [is] unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534 (internal quotation marks omitted). "If the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was 'potentially useful' for the defense, then a defendant must show that the government acted in bad faith in destroying the evidence." United States v. Bohl, 25 F.3d 904, 909-10 (10th Cir. 1994) (citing Youngblood, 488 U.S. at 58, 109 S.Ct. 333).
Defendant sought sanctions for destruction of evidence, but did not argue whether the evidence was exculpatory, potentially useful, or constitutionally material. The focus of the hearing was the threshold issue of whether Greyhound was acting as an agent of the Government. As explained below, the Court finds that neither Greyhound nor Ms. Gomez-Alvira acted as agents of the Government.
The Government first argues that Greyhound could not have violated Defendant's due process rights because the bus company is not a Governmental actor or entity. This argument was rejected by United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), which held that private parties can act as Governmental agents. See Ackerman, 831 F.3d at 1300 ( ). The Court must therefore determine whether Greyhound was acting as an agent of the Government.
"An agent of the government, like the government itself, is restrained by the language of the Constitution." United States v. Alexander, 447 F.3d 1290, 1294 (10th Cir. 2006); Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (...
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