United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER DENYING WITHOUT
PREJUDICE GOVERNMENT’S MOTION TO COMPEL
L. HORAN, UNITED STATES MAGISTRATE JUDGE
September 8, 2019, the government moved to compel Defendant
Alfredo Navarro Hinojosa to produce a statement made by Laura
Hinojosa, his niece – a statement that the government
argues is in the possession of Defendant’s counsel.
See Dkt. No. 44. The presiding United States
district judge referred the motion to compel to the
undersigned United States magistrate judge. See Dkt.
No. 45. Defendant did not file a response to the motion, and
the deadline to do so has expired. See N.D. Tex. L.
Crim. R. 47.1(e); Fed. R. Crim. P. 45(a)(1)(C).
reasons explained below, the Court DENIES the motion without
action, Defendant has been indicted for harboring of an
illegal alien, his brother and co-defendant, Augustin
Hinojosa Navarro, in violation of 8 U.S.C. §
1324(a)(1)(A)(iii). See Dkt. No. 18. And the
government argues that the statement it moves to compel
was evidence relied upon by the defense during the detention
hearing and was explicitly read into the record by defense
For purposes of context, it appears that the defense will
argue, in part, that Alfredo Navarro Hinojosa is not guilty
of the crime for which he is charged in the instant case
because it was Laura Hinojosa, and not Alfredo Navarro
Hinojosa, who was providing Agustin Hinojosa Navarro with
financial support. The quoted statement from Laura Hinojosa[
– read into the record at the detention hearing –
]states that Laura Hinojosa and her siblings knowingly
provided financial support to their father (Agustin), who was
a known illegal alien. This statement is therefore evidence
with respect to both Alfredo Navarro Hinojosa as well as
Laura Hinojosa, who is a target and a witness of the ongoing
Presumably, the defense would utilize this evidence in its
case-in chief and therefore discovery obligations apply to
such evidence. But even if such obligations did not apply,
the simple fact that the defense read it directly into the
record requires its production.
To the extent that the defense makes the argument that the
statement was received orally and not in writing, then the
government requests that the recording of the statement be
ordered to be produced. If no recording was made, then the
government requests that the court order the defense to
produce the transcription of the statement, and then reviewed
and adopted by Laura Hinojosa, and then read [in] Court.
Dkt. No. 44 at 3.
the government fails to explicitly cite authority for its
motion to compel, the Court first examines certain
fundamentals underlying criminal cases that restrict the
scope of discovery, as compared to the broader discovery
allowed in civil actions. See, e.g., Weatherford v.
Bursey, 429 U.S. 545, 559-61 (1977) (“There is no
general constitutional right to discovery in a criminal
case.”); citations omitted); Campbell v.
Eastland, 307 F.2d 478, 487 (5th Cir. 1962)
(“While the Federal Rules of Civil Procedure have
provided a well-stocked battery of discovery procedures, the
rules governing criminal discovery are far more
restrictive.” (citations omitted)).
In civil cases, both sides are entitled in advance of trial
to know and to respond to the evidence that will be presented
by the other side, including any expert testimony. In
criminal cases, the defendant is entitled to keep his cards
close to the vest; he may not be required to disclose his
evidence or trial strategy until after the government has
presented its case. These differences are reflected in the
United States v. Nacchio, 555 F.3d 1234, 1259-60
(10th Cir. 2009) (en banc) (McConnell, J., dissenting);
see also United States v. Mehta, 236 F.Supp.2d 150,
155 (D. Mass. 2002) (“The difference between the civil
and criminal rules derives from the special constitutional
constraints of criminal proceedings. Intuitively, discovery
against a criminal defendant raises the specter of infringing
the Fifth Amendment privilege against
self-incrimination.” (footnote omitted)).
in criminal cases, “neither side has a general right to
discover the other’s evidence, though the defendant is
entitled to request and obtain certain specific types of
evidence from the prosecution.” Nacchio, 555
F.3d at 1260. And, as another district court in this circuit
the drafters of the Federal Rules did not provide for
expansive discovery by the Government due to
“constitutional limitations that are thought to
restrict prosecutorial discovery.” 2 Charles Alan
Wright, et al., Federal Practice & Procedure Criminal
§ 255 (3d ed. 2007). Indeed, several courts have held
that only these rules can impose the duty of disclosure on
defendants, regardless of the authority of the judge. See
United States v. Dailey, 155 F.R.D. 18, 21 (D.R.I. 1994)
(holding that Federal Rules trumped local rules where local
rule required automatic disclosure by both parties of
evidence to be used at trial without any prior defendant
request); United States v. Layton, 90 F.R.D. 520,
523 (N.D. Cal.1981) ...