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United States v. Melisa Dominguez in custody

United States District Court, S.D. Texas, Houston Division

May 3, 2018

United States of America
v.
Melisa Dominguez in custody

          ORDER

          Gray H. Miller, United States Judge

         Pending 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.

         I. Motion for Copy of All Audio Recordings and Transcripts Thereof (Dkt. 176)

         Dominguez 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. Id.

         Under 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 defendant if:
● 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.

         II. Motion to Discover Criminal Records of Witnesses (Dkt. 177)

         Dominguez 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.

         III. Motion for the Government to Reveal Agreements/Concession/Leniency/Immunity to Testifying Witnesses (Dkt. 178)

         Dominguez 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. Id.

         The 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. Id.

         Federal 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).

         In 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).

         In 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.

         These 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.

         IV. Opposed motion to Dismiss Count(s) 1, 7, 12, 13, 18, 19, 20, 22 and 27 (Dkt. 179)

         Dominguez 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”[1] 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.

         The 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 ...


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