United States District Court, S.D. Texas, Houston Division
H. Miller, United States Judge
before the court are the following motions, all filed by
defendant Melisa Dominguez: (1) motion for copy of all audio
recordings and transcripts thereof (Dkt. 176); (2) motion to
discover criminal records of defendants (Dkt. 177); (3)
motion for government to reveal
agreements/concession/leniency/immunity to witnesses (Dkt.
178); (4) motion to dismiss Counts 1, 7, 12, 13, 18, 19, 20,
22 and 27 (Dkt. 179); (5) motion to dismiss Counts 1, 7, 13,
18, 19, 22 and 27 (Dkt. 180); (6) motion for discovery under
Rule 16(a) (Dkt. 182); (7) motion to exclude evidence barred
by evidence Rule 403 (Dkt. 183); (8) motion to exclude
evidence barred by evidence under Rule 404(b) (Dkt. 184); (9)
motion to produce tapes or CD-ROMs of conversations recorded
by consent or wiretap authorization and bilingual translation
transcripts thereof (Dkt. 185); (10) motion for pretrial
notice of Rule 404(b) evidence (Dkt. 186); and (11) motion to
adopt objections of co-defendants (Dkt. 187). The United
States of America (the “Government”) has filed a
response to these motions in which it states that all of the
motions should be denied because they are either meritless or
moot. Dkt. 274 at 1. After considering the motions, the
Government's response, and the applicable law, the court
is of the opinion that the motions at docket entries 179,
180, and 183, should be DENIED; the motions
at docket entries 176, 178, and 182, should be
GRANTED IN PART AND DENIED IN PART; and the
motions at docket entries 177, 184, 185, 186, and 187 should
be GRANTED AS UNOPPOSED.
Motion for Copy of All Audio Recordings and Transcripts
Thereof (Dkt. 176)
moves for an order requiring that the Government produce
“a top quality true copy” of the following:
“(1) all audio and video recordings made during the
investigation in this case on which this Defendant is seen or
heard; (2) an index listing the specific time(s) and specific
date(s) the Government posits or opines that this Defendant
can be so seen or heard; and (3) bilingual transcripts of all
such recordings in both the Spanish language and English
language where a word, phrase, sentence, or, expression is
heard in the Spanish language on the original
recording.” Dkt. 176. The Government states that it
will provide true copies of all recordings made in this cases
as well as transcribed translations of those recordings that
are not in English. Dkt. 274 at 1. However, it objects to the
request for “top quality” recordings.
Federal Rule of Criminal Procedure 16(a)(1)(B)(i),
Upon a defendant's request, the government must disclose
to the defendant, and make available for inspection, copying,
or photographing, all of the following:
(i) any relevant written or recorded statement by the
● the statement is within the government's
possession, custody, or control; and
● the attorney for the government knows-or through due
diligence could know-that the statement exists . . . .
Fed. R. Crim. P. 16(a)(1)(B)(i). The rule does not require
the Government to make the copies, much less a “top
quality” copy. Thus, the Government's objection to
the imposition of a burden to ensure the copies are
“top quality” is SUSTAINED. The
rule also does not require the Government to list the
specific times or dates the defendant can be heard on the
recordings. Dominguez's motion is GRANTED IN PART
AS UNOPPOSED AND DENIED IN PART. It is
GRANTED AS UNOPPOSED to the extent that the
Government has already agreed to provide the recordings and
transcripts Dominguez requests. It is DENIED
to the extent Dominguez seeks for the court to impose an
additional burden on the Government of producing “top
quality” copies of the recordings and to the extent
Dominguez requests the Government provide her with an index.
The copies the Government provides shall be true and correct
copies of the original.
Motion to Discover Criminal Records of Witnesses (Dkt.
requests disclosure of the criminal records of the
Government's witnesses. Dkt. 177. The Government responds
that it will disclose the criminal records of testifying
witnesses it intends to call at trial. Dkt. 274 at 2. The
motion is therefore GRANTED AS UNOPPOSED.
Motion for the Government to Reveal
Agreements/Concession/Leniency/Immunity to Testifying
Witnesses (Dkt. 178)
requests that the court order the Government to disclose any
agreement, concession, leniency, and
immunity provided to any witnesses that the Government plans
to call at trial. Dkt. 178. She seeks an order requiring the
Government to reveal any deal or agreement “that could
conceivably influence said witness' testimony.”
Id. As a basis for her request, Dominguez cites
Giglio v. United States, Brady v. Maryland,
Williams v. Dutton, and Davis v. Alaska.
Government responds that it intends to comply with its
obligations under Rule 16, as well as the requirements of
Brady, Giglio, the Jencks Act, and the U.S.
Constitution. Dkt. 274. The Government
agrees to make available any agreements or promises made to
the witnesses it intends to call at trial. Id. at 3.
However, the Government opposes Dominguez's request to
provide any and all “conceivable” deals made
because it argues the term is vague and not rooted in law.
Rule of Criminal Procedure 16 states that a criminal
defendant may obtain discovery of items are “material
to preparing the defense”; items that the Government
“intends to use . . . in its case-in-chief at
trial”; or items that were “obtained from or
belong to the defendant.” Fed. R. Crim. P.
16(a)(1)(E)(i). Under Brady, “the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). In
Giglio, the U.S. Supreme Court extended the
“Brady rule to evidence affecting the
credibility of key government witnesses.” United
States v. Davis, 609 F.3d 663, 696 (5th Cir. 2010)
(discussing Giglio v. United States, 405 U.S. 150,
92 S.Ct. 763 (1972)). “[W]hen the reliability of a
witness is determinative of guilt or innocence, evidence
affecting credibility of that witness falls within
Brady's rule.” United States v.
Navarro, 169 F.3d 228, 234 (5th Cir. 1999) (citing
Giglio, 405 U.S. at 154-55).
Williams v. Dutton, the Fifth Circuit noted that
Brady “imposes an affirmative duty on the
prosecution to produce at the appropriate time requested
evidence which is materially favorable to the accused either
as direct or impeaching evidence.” Williams v.
Dutton, 400 F.2d 797, 800 (1968). The prosecution argued
that Brady did not apply because there was no
showing that the evidence was favorable to the defendant.
Id. The Fifth Circuit, however, determined that in
such circumstances the trial court must determine whether the
evidence is favorable in camera. Id.
“The Dutton in camera procedure is a
suggestion, not a constitutional procedural mandate that the
trial judge rummage through all government evidence prior to
trial.” United States v. Harris, 458 F.2d 670,
677 (5th Cir. 1972).
Davis v. Alaska, the U.S. Supreme Court determined
that the defendant's right to a meaningful confrontation
includes the right to impeach a witness at trial during cross
examination with the witness's juvenile record. Davis
v. Alaska, 415 U.S. 308, 319-20, 94 S.Ct. 1105 (1974).
The Court held that the “State's policy interest in
protecting the confidentiality of juvenile offender's
record cannot require yielding of so vital a constitutional
right as the effective cross-examination of an adverse
witness.” Id. at 320.
cases do not use the term “conceivably”; they
require the Government to disclose any evidence that is
“materially favorable.” Accordingly,
Dominguez's motion is GRANTED IN PART AND DENIED
IN PART. It is GRANTED AS UNOPPOSED
to the extent that the Government has already agreed to make
available any agreements or promises made to the witnesses it
intends to call at trial and to comply with the requirement
to provide evidence that is “materially
favorable.” It is DENIED to the extent
Dominguez uses the term “conceivably” because
that is not the recognized legal standard.
Opposed motion to Dismiss Count(s) 1, 7, 12, 13, 18, 19, 20,
22 and 27 (Dkt. 179)
moves for the court to “make [the] Government . . .
elect . . . which conspiracy and substantive counts and/or
conviction(s) Defendant will be sentenced on, since the
indictment suffers from multiplicity.” Dkt. 179. She
then “objects to being convicted
of” the following: (1) Count 1 Conspiracy as
well as Counts 7, 13, 18, 19, 20, and 22, which she contends
are lesser included offenses of Count 1; and (2) Count 27,
which relates to importation of aliens for immoral purposes,
as well as Counts 12, 19, and 20, which she contends are
lesser included offenses of Count 1. Id. She cites
Ball v. United States, Brown v. Ohio,
Rutledge v. United States, Richardson v. United
States, and United States v. Bazan in support
of her positions. Id.
Government first notes that the “‘double jeopardy
concerns implicated by multiplicitous counts do not arise
unless a defendant is actually convicted of, rather
than charged with, multiplicitous counts.'” Dkt.
274 (quoting United States v. Josephberg, 459 F.3d
350, 355-56 (2d Cir. 2006)) (emphasis added). Thus, there is
no concern about a violation of the Double Jeopardy Clause
due to simultaneous prosecutions; this will not be a concern
unless this case reaches the punishment phase. Id.
The Government concedes that the remedy for the concern over
punishment for multiplicitous counts is dismissal of the
count that creates the multiplicity, but it asserts that
“the remedy is not to dismiss counts in the indictment
but to allow the jury to deliberate with the proper jury
instructions.” Id. It points out that if the
jury still returns convictions on both counts, the court
could dismiss the count that created the multiplicity at that
point. Id. The Government argues that “because
the convictions complained of have yet to occur, and because
a remedy ...