US v. Sanchez
| Decision Date | 14 October 1994 |
| Docket Number | No. 94-40031-01-SAC.,94-40031-01-SAC. |
| Parties | UNITED STATES of America, Plaintiff, v. Edgar Artemio SANCHEZ, Defendant. |
| Court | U.S. District Court — District of Kansas |
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Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for defendant.
Thomas G. Luedke, Office of U.S. Atty., Topeka, KS, for plaintiff.
On June 15, 1994, the grand jury returned a one count indictment charging the defendant, Edgar Artemio Sanchez, with knowing and intentional possession with the intent to distribute approximately one hundred kilograms of a mixture or substance containing a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.
On May 5, 1994, Sanchez, while traveling alone in a rented van, was stopped by Trooper Weigel for driving 71 m.p.h., 6 m.p.h. over the posted speed limit on I-70. Sanchez is a native of Guatemala but has lived in the United States since 1969. Spanish is his first language. After issuing Sanchez a warning for speeding, Trooper Weigel asked Sanchez for permission to search Sanchez' vehicle. Sanchez consented to the search of the van. During his thorough search of the van, Trooper Weigel discovered what he believed to be cocaine. Sanchez was placed under arrest and given the Miranda warnings. Based upon questions posited by Trooper Weigel, Sanchez made certain incriminating statements at the scene of the arrest. After his arrest, Sanchez was interviewed on two separate occasions by law enforcement officers. Prior to each interview, Sanchez was given the Miranda warning in both Spanish and English. During each interrogation, Sanchez made incriminating statements.
This case comes before the court upon the following pretrial motions filed by the defendant:
1. Motion for discovery (Dk. 23).
2. Motion to suppress evidence seized from van (Dk. 27); Memorandum in support of motion to suppress evidence seized from van (Dk. 28); Memorandum of law on issue of consent.
3. Motion to suppress statements of accused (Dk. 25); Memorandum of law in support of motion to suppress statements of accused (Dk. 26).
4. Motion to preserve dispatch tapes (Dk. 24).
5. Motion to dismiss indictment due to violation of 18 U.S.C. § 3161 and Rule 4(b) of the Federal Rules of Criminal Procedure (Dk. 30).
6. Motion for production of witnesses pursuant to Rule 17(b) of the Federal Rules of Criminal Procedure (Dk. 33).1
The government has filed a response (Dk. 31) and the defendant has filed a reply to that response (Dk. 32). The government has filed a surreply (Dk. 34).
On August 30-31, 1994, the court conducted a hearing on these motions. The defendant's request for sequestration of witnesses was granted. At that hearing, following the government's presentation of evidence, and the defendant's presentation of his own testimony and the testimony of his daughter, the defendant requested a continuance to acquire time to locate and obtain a witness who would testify to the effect that the mile markers used by Trooper Weigel to time Sanchez' vehicle2 are not accurate measurements of the distance between two points on the road, but are instead merely reference points spaced approximately one mile apart. Over the government's objection, the court continued the hearing until September 13, 1994, to permit the defendant the opportunity to obtain such a witness.
On September 13, 1994, the defendant attempted to call Cindy G. McNorton, investigator for the Federal Public Defender's Office, as a witness to testify concerning her understanding of the significance of the mile markers and to introduce photographs which she had taken of the area where Sanchez was stopped. The court precluded McNorton from testifying based upon the invocation of the rule of sequestration. Nevertheless, the court admitted a report prepared by McNorton concerning her investigation. The court also permitted the introduction of eleven photographs3 taken by McNorton of the area where Sanchez was stopped.
On September 27, 1994, Sanchez filed a motion for rehearing, or in the alternative, that the court view the scene of the traffic stop that is the subject of this case (Dk. 39). In that motion, the defendant argues that the court erred in not permitting McNorton to testify. In support of that motion, the defendant proffers the testimony of McNorton relevant to each of the photos. Defendant's counsel argues that he was unaware of the need to call McNorton until after hearing Trooper Weigel's testimony, and therefore it would be unfair and too harsh a penalty under the circumstances to exclude McNorton's testimony. Defendant's counsel argues that McNorton's testimony was only to rebut Trooper Weigel's testimony, and therefore she should not be disqualified from testifying.
The government opposes the defendant's motion for rehearing on several grounds. Specifically, the government argues that the defendant's own lack of preparation and lack of foresight has caused his current predicament and that such circumstances do not justify granting the defendant's request for yet another opportunity to present his evidence. The government argues that the defendant apparently knew or should have known before the August 30-31, 1994, hearing that the distances between or the visibility of the mile markers were potential issues in this case. "It is disingenuous for defense counsel to claim that they had no information concerning the mile markers prior to Trooper Weigel's testimony on August 30." The government argues, citing other cases in which the Federal Public Defender appeared in which this same issue has arisen, that this is merely another attempt "to subvert sequestration orders that they themselves requested." The government also argues that the information the defendant intends to introduce is either irrelevant or cumulative to the evidence already admitted.
The court denies the defendant's request for rehearing. Nor has the court accepted the defendant's invitation to view the scene of the stop on I-70 in person. The court believes that the exclusion of McNorton as a witness was correct under Fed. R.Evid. 615, and in any event, the court has considered the photographs taken by McNorton and her report in deciding the pending motions. McNorton's testimony would therefore largely be cumulative to the evidence admitted. Moreover, even if the defendant were in some way prejudiced, that prejudice was caused solely by the defendant's lack of foresight. Nothing prevented the defendant from acquiring another witness who was not present at the August 30-31, 1994, hearing, to testify regarding the distance between mile markers. Nor should the defendant's counsel have been surprised by this court's application and interpretation of Rule 615, as this court has consistently applied the rule in the same manner in the past.
Fed.R.Evid. 615 provides:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
"The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion." Notes of Advisory Committee on 1972 Proposed Rules (citing 6 Wigmore §§ 1837-1838). The need for a sanction, and the nature of one, if imposable, for violation of Fed.R.Evid. 615 is committed to the trial court's sound discretion. United States v. Sepulveda, 15 F.3d 1161, 1177 (1st Cir.1993), cert. denied, ___ U.S. ____, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994).
The court, having considered the arguments of the parties, denies Sanchez' motion for rehearing (Dk. 39).
The court, having considered the evidence presented, the briefs and arguments of counsel, and the applicable law, is now prepared to rule.
1. Motion for discovery (Dk. 23).
Sanchez has filed a motion for discovery under Fed.R.Crim.P. 16 and Brady. The defendant separately numbers his request into thirteen separate paragraphs.
In response, the government argues that the defendant's requests should be denied summarily for non-compliance with this court's procedural guidelines. The government notes that the defendant does not state that he cannot reach an agreement with the government regarding the requested information. Nor, according to the government's brief, has the defendant availed himself of the opportunity to inspect the materials in the government's possession. The government then proceeds to respond to each of the defendant's specific requests.
In his reply brief, the defendant argues that, inter alia, the government's counsel's absence for two weeks made it impossible for him to comply with this court's procedural guidelines. It appears from the defendant's reply brief that the parties have agreed to or settled most of the issues. The defendant has apparently narrowed the focus of his request to the following:
1. According to the defendant's brief, the parties have agreed to submit, for in camera review, if the court is willing, Trooper Weigel's personnel file; and
2. The materials requested in paragraph 10, which states:
Copy of logs maintained by the Kansas Highway Patrol of requests made by them for information from the following databanks: National Crime Information Center (NCIC); El Paso Information Center (EPIC); and, Interstate Identification Index (III). In addition, the accused requests all manuals, whether denominated as training manuals, instructional manuals, standard operating procedure manuals, directives, policies...
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