united stated district court for the district of new ... · public suggested corruption within...

UNITED STATED DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA,

Plaintiff,

vs. No. 13-CR-1877 WJ JAMIE ESTRADA,

Defendant.

DEFENDANT JAMIE ESTRADA’S MOTION TO COMPEL DISCOVERY AND SET BRIEFING SCHEDULE FOR DISPUTES REGARDING BRADY AND

JECNKS DISCLOSURES

Jamie Estrada, by and through counsel of record Garcia Ives Nowara (Zachary A.

Ives and Molly Schmidt-Nowara), respectfully requests an order from the Court

compelling the government to produce information pursuant to the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution, Brady v. Maryland, 373 U.S.

83 (1963) and its progeny, including Kyles v. Whitley, 514 U.S. 419 (1995), and Giglio v.

United States, 405 U.S. 150 (1972), the Jencks Act, and Federal Rule of Criminal

Procedure 16.

Full disclosure of Rule 16 materials and early disclosure of Brady and Jencks

materials are essential to the preparation of Estrada’s defense, as discussed in detail

below. It appears that the government wishes to confine this case to the narrow subject

of emails about things such as the purchases of underwear and music. But this case is

really about the enormous political and personal consequences of the public exposure of

certain emails for some of the most powerful and influential people in our state, including

Governor Susana Martinez, who is seeking reelection and who appears to aspire to obtain

Case 1:13-cr-01877-WJ Document 36 Filed 03/07/14 of 27

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an elected position at the national level. Some of the emails that were exposed to the

public suggested corruption within Martinez’s administration, leading to both federal and

state criminal investigations and causing political fallout that Martinez and her allies have

tried to deflect by attacking Estrada and others. Estrada seeks full disclosure from the

government, as required by law, to prepare his defense, which will include revealing the

true motives of Martinez and those in her inner circle in pressing for Estrada’s

prosecution and conviction.

I. RELEVANT PROCEDURAL HISTORY.

On May 29, 2013, a grand jury returned a fourteen-count indictment against

Estrada.1 (Doc. 1.) In counts 1-12, the United States alleged that, over the course of

nearly one year, Estrada intercepted wire communications in violation of 18 U.S.C. §

2511(1)(a). In counts 13 and 14, the United States alleged that Estrada made false

material statements to government agents in violation of 18 U.S.C. § 1001(a)(2).

On October 30, 2013, a grand jury returned a superseding indictment to replace the

wire communications counts with interception of email counts. (Doc. 23.) Among other

changes, the superseding indictment removed one of the original false statements counts

and added three new false statements counts.

On June 14, 2013, defense counsel sent the government its first discovery request.

See Exhibit A, 6/14/13 Letter from Zachary A. Ives to Jon Anderson. On June 17, 2013,

the Court entered the standing discovery order. (Doc. 7.) On September 30, 2013,

defense counsel sent the government a second, comprehensive request for discovery,

which included a request for early disclosure of Jencks material and timely disclosure of

Brady materials. See Exhibit B, 9/30/13 Letter from Zachary A. Ives to John Anderson. 1 For the sake of brevity, counsel will refer to people by their surnames.


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On the same day, the defense filed a Notice of Discovery Requests Pursuant to Brady v.

Maryland, 373 U.S. 83 (1963), and Its Progeny. (Doc. 18.)

The government turned over a significant amount of discovery in November, 2013,

but did not respond directly to counsel’s discovery requests until November 19, 2013.

See Exhibit C, 11/19/13 Letter from Fred Federici to Zachary A. Ives. In its response to

defense counsel’s discovery requests, the government stated that “[w]e do not believe

that there is any part of the Court’s standing discovery order that is intended to expand

the substantive scope of the government’s discovery obligations, or any intent to alter the

timelines for disclosure of any Brady, Giglio, or Jencks Act material.” Id. This

statement can reasonably be interpreted as a denial of counsel’s request for the

information enumeration in the Notice of Discovery Requests. (Doc 18.) Counsel for

Estrada sent a request to the government on Monday, March 3, 2014, proposing that the

government agree to the remedy sought in this Motion, but has not received a response

from the government. See Exhibit D, 3/3/14 Email from Molly Schmidt-Nowara to

Jeremy Pena and Fred Federici.

II. RELEVANT FACTUAL BACKGROUND.

According to the superseding indictment, Estrada illegally intercepted emails sent to

Governor Susana Martinez’s campaign domain, susana2010.com, and also made false

statements to the FBI. (Doc. 23.)

At the heart of this case are the 2010 gubernatorial campaign of then-candidate

Susana Martinez and her subsequent administration as Governor. Martinez ran on a

strong anti-corruption platform with promises of unprecedented transparency in her

administration. But the facts show that the Martinez administration has used a very


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different style of governance than the one promised during the campaign: the Martinez

administration appears to rely on political pressure and patronage, back-channeling to

accomplish its political goals, and retaliation and retribution against political opponents

to keep people in line.

Some background information about Estrada and his ties to the Martinez campaign in

2010 is important to put into context the prosecution and the issues in this motion. For

many years, Estrada has been a well-respected figure in the Republican Party. A native

New Mexican, Estrada was Deputy Assistant Secretary of Commerce for Manufacturing

from 2005–2009 under President George W. Bush and has been widely considered a

rising star in the New Mexico Republican Party. In 2010, Estrada was a Republican

candidate for a position on the Public Regulation Commission (PRC).

Before Estrada ran for the PRC seat, he was Martinez’s campaign manager for her

gubernatorial campaign from June 2009 until December 2009. As part of his job duties,

Estrada received a copy of the username and password for the susana2010.com domain,

which, according to the government, was donated by an early political supporter and

employee of Martinez, David Hiss.

In December 2009, Estrada left the Martinez campaign. Martinez and her political

consultant, Jay McCleskey, in an obvious effort to tarnish Estrada’s reputation, have

publically and repeatedly claimed that Estrada was fired for misconduct. See Exhibit E,

Mike Gallagher, Feds: Martinez emails hijacked, ALBUQUERQUE JOURNAL, May 31,

2013, at 3/5. McCleskey claimed to the FBI that “Estrada and Governor Martinez had a

falling out and he was removed from the campaign in the middle of it.” See Exhibit F,

McCleskey 302 dated 7/2/12. McCleskey also claimed to the FBI that Martinez “caught


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Estrada reading her emails from the susana2010.com domain, which was the reason for

him being fired from the campaign.” Id. Martinez has also made public statements

attacking Estrada, stating that she long believed Estrada to be “a man of suspect

character.” See Exhibit G, Justin Horwath, Fallout, SANTA FE REPORTER, June 5, 2013,

at 2; Exhibit F. But these characterizations by Martinez and McCleskey are undercut by

emails and text messages between December 2009 and December 2010 involving Estrada

and members of the Martinez campaign. These emails and text messages show that

Estrada was not fired, but in fact remained actively involved with all campaign staff even

after he initiated his own campaign for the PRC. For example, an email from December

16, 2009 shows that Estrada cooperated to coordinate a smooth transition from his role as

acting campaign manager to PRC candidate. See Exhibit H, 12/15/09-12/16/09 email

exchanges between McCleskey and Estrada.

In fact, although Martinez now claims she fired Estrada and that she knew him to be

“of suspect character,” she actually helped him in his campaign for PRC, which began in

January 2010, a month after she alleges she fired him for misconduct. Martinez offered

Estrada political support by including him in campaign events with her. Moreover, email

and text message traffic between Estrada and the campaign was ongoing over a

compensation dispute because Estrada was not compensated for his work on the

campaign in 2009 until the summer of 2010. See Exhibit I, 1/4/10-1/5/10 emails between

Estrada and Martinez and McCleskey. On July 16, 2010, Martinez sent a text message to

Estrada saying, “I would like to give you a check …to pay you for your help and

support.” McCleskey, in a reply to Estrada on July 17, 2010, responded back to Estrada’s

query on the subject with “no worries…you deserve it” and added “she and I talked last


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night and you are in a good place w/her.” See Exhibit J, 7/16/10-7/17/10 text message

between Martinez and Estrada and emails between McCleskey and Estrada.

Moreover, during the general election campaign, Martinez and her national finance

consultant asked Estrada to be on the host committee for a September 14, 2010 fundraiser

in Washington, DC, to which he agreed. See Exhibit K, Flyer for September 2010

Martinez Fundraiser. Estrada traveled to Washington to attend the fundraiser and in her

remarks, Martinez acknowledged Estrada in the room as “someone who has been with me

since the very beginning.” Estrada was also invited to the Governor-elect’s inaugural

celebration in 2011 at the special request of Martinez herself. See Exhibit L, text

messages between Estrada and Jordan Banegas; see also Exhibit G at 1.

The investigation of the alleged interception of susana2010.com emails began at the

urging of Martinez, Pat Rogers (a Republican operative and Martinez insider), and

McCleskey. The alleged interceptions occurred between July 2011 and June 2012. (Doc.

23.) But it was only after a politically explosive email regarding Martinez and members

of her administration was publically disclosed, did Martinez and her advisor McCleskey

push the FBI in connection with the alleged interception of emails.

Some of the allegedly intercepted emails (though not those charged in the indictment)

revealed that—contrary to Martinez’s promises to run an administration free of

corruption—Martinez and her circle of insiders have engaged in multiple acts of

misconduct and even possibly illegal activity. The publicly released emails showed that

susana2010.com email addresses were used for, among other things, political

communications involving the Public Education Department and discussions between

members of Martinez’s staff, McCleskey, and Rogers about how to pressure members of


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the State Fair Commission to award the lucrative Downs racino lease to a company

owned by people who had contributed money to Martinez’ campaign. It is not a

coincidence that these three individuals—Martinez, McCleskey, and Rogers—were at the

forefront of the campaign to prosecute Estrada. The controversies over whether Martinez

and her associates were improperly conducting state business on private email, trying to

evade the Inspection of Public Records Act, and were corruptly influencing the process

for awarding the racino lease to politically favored bidders have been the subjects of

damaging and embarrassing media coverage. See Exhibit M, Heath Haussamen, E-mails

were ‘illegally obtained,’ guv’s spokesman says, NMPOLITICS.NET, June 28, 2012, at 2/3.

Moreover, the suspected corruption surrounding the racino contract is the subject of

open state and federal criminal investigations. There is evidence to suggest that the

Martinez administration engineered a bid-rigging scheme to guarantee that high-dollar

Martinez political donors who owned the Albuquerque Downs would win the lucrative,

twenty-five year racino contract with Expo New Mexico (which runs the state

fairgrounds). A federal investigation into the racino pay-to-play allegations is pending.

See Exhibit N, Mike Gallagher, Email theft probe went down two paths, ALBUQUERQUE

JOURNAL, June 6, 2013, at 1/3. It appears that the federal inquiry includes an

investigation into Martinez’s involvement with the alleged bid rigging, as well the

involvement of McCleskey. Both Martinez and McCleskey are key witnesses in the

Estrada matter; the discovery turned over so far by the government shows that

McCleskey spearheaded the Martinez administration’s efforts to indict Estrada in this

case. This prosecution appears to be the result of the Martinez administration’s concerted

efforts to deflect attention from the racino investigation, as well as misconduct and other


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acts that may have serious political and personal consequences for Martinez and

McCleskey. It is also reasonable to infer that Martinez and McCleskey may be

attempting to curry favor with the government in the hopes of obtaining a favorable

outcome in the racino investigation.

It is not surprising the Martinez administration wishes to deflect attention from the

racino lease. The published emails support allegations that Martinez and her

administration rigged the bidding process for the Expo New Mexico racino contract in

favor of individuals (the owners of the Downs) who had donated $70,000.00 to the

Martinez campaign. See Exhibit O, Mike Gallagher, ‘Buster screwed us,’ ALBUQUERQUE

JOURNAL, Jan. 14, 2014, at 4. The emails also revealed that, although the Martinez

administration made much of its claim that the racino lease was being put out to

competitive bid, the selection committee that reviewed the bids all had ties to the

Republican Party and/or McCleskey and that the bidder that scored highest was the

Downs. Id. at 6. Rogers, who had worked on Martinez’s inaugural campaign as a

lawyer, was hired by the Downs to represent them in the selection process. Id. at 5. The

emails revealed that Rogers discussed the lease with Martinez administration officials

using susana2010.com email addresses before the State Fair Commission approved the

lease. See Exhibit E at 3/5. The emails also showed that administration was sensitive to

the Downs’ owners being publicly involved with the inauguration because of concerns

about the appearance of impropriety. See Exhibit O at 4.

In addition, the emails revealed members of the Martinez administration using private

email accounts to conduct government business, despite the administration’s purported

commitment to transparency and open government. See Exhibit M at 2/3. Discovery of


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these emails exposed what was effectively a shadow government in which members of

the Martinez political machine discussed state business with private individuals on

private email accounts. Id. The emails also exposed members of the Martinez

administration gathering information for political purposes while on the clock using

private email. For example, a Public Education Department official emailed

McCleskey’s susana2010.com email to report that he had separated a list of teachers’

email addresses into union and non-union members for use in a political attack by the

Martinez administration in its battle against teacher’s unions. Id.

Although it appears Martinez met with the government only a handful of times in

connection with this case, McCleskey, one of her closest political advisors, contacted the

government approximately 20 times between June 2012 and May 2013 regarding this

case, despite the fact that McCleskey is not a named alleged victim or even referenced in

the indictment. (Doc. 1; Doc. 23.) The 302 reports turned over by the government show

that McCleskey selectively gave the government information about Estrada and his

connection to the Martinez campaign (claiming, for example, that Estrada was fired and

excluding details about the Governor’s continued support of Estrada during his 2010 PRC

run) while pressing the FBI and the United States Attorney to pursue a criminal case

against Estrada. See Exhibit F. These actions reveal a cynical effort by the Martinez

administration and its insiders to spin the criminal investigation for political purposes.

Their intent was to redirect the public and government’s focus from the racino

investigation and other scandals onto their chosen scapegoat, Estrada.

Special Agent Michael Boady of the FBI was assigned as case agent in this

investigation. As part of his assignment, Boady interviewed Estrada, interviewed many


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of the witnesses, and testified at both grand jury presentations. Boady’s investigation,

however, has been revealed as sloppy and incomplete. He made several errors in his

reports that have been turned over to the defense, as well as misstatements to the first

grand jury.2 Boady repeated to the grand jury McCleskey’s and Martinez’s erroneous

claim that Estrada was fired from his position as campaign manager. See Exhibit P,

Excerpts of Boady Grand Jury testimony from May 29, 2013 at 10. As another example,

count fourteen of the original indictment (Doc. 1.), charged Estrada with violating 18

U.S.C. § 1001(a)(2) based on a claim that Estrada had falsely denied creating a new

GoDaddy account as part of his alleged interception scheme.3 Boady testified to the

grand jury that Estrada had created a “new GoDaddy account” to host the

susana2010.com domain in July of 2011 and claimed to the grand jury that Estrada’s

denials that he created a new GoDaddy account were false. See Exhibit P at 20-21.

Boady testified that he had reviewed the indictment and that it was true, including count

fourteen. But it was Boady’s grand jury testimony that was false. Id. In fact, Estrada did

not create a new GoDaddy account in July of 2011. The government appeared to have

recognized the problem with Boady’s misstatements and eliminated the original count

fourteen in its superseding indictment, but has refused to turn over the second grand jury

transcript.

2 The government provided Estrada’s counsel with the transcript of the grand jury proceedings that resulted in the first indictment. However, the government has refused to produce the transcript of the grand jury proceedings that resulted in the second indictment. The government has not provided any reason for this, and there does not appear to be a principled reason. 3 As discussed in greater detail in Estrada’s Motion to Compel Production of Emails That Agent Michael Boady Had Testified that Governor Martinez and her Staff Sent to Contacts, the susana2010.com domain was registered through GoDaddy.com.


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The government chose to indict Estrada only in connection with the alleged

interception of non-political emails, including Spanx orders and iTunes receipts. This

was by design in an attempt to avoid the political storm roiling around this case. But this

case is not about underwear and music purchases. Despite the government’s efforts, it

cannot shift the attention away from emails that suggest that members of the Martinez

administration and its allies engaged in misconduct in matters of significant public

importance.

The government’s case rises and falls on the testimony and credibility of witnesses

who have powerful motives to ensure that Estrada is convicted. This is not a case that

hinges on physical evidence. For example, for the jury to convict Estrada, it would have

to believe that he did not have lawful access to the susana2010.com domain, and this

evidence could come only in the form of testimony from the above-referenced witnesses.

Similarly, the false statements charges rest almost entirely on Boady’s believability, since

he did not tape record his interaction with Estrada.

III. LEGAL BASIS FOR REQUESTED RELIEF.

A. Rule 16, the Brady Doctrine, and the Jencks Act.

1. Fed. R. Crim. P. 16.

Fed. R. Crim. P. 16(a)(1)(E)(i) provides in pertinent part:

Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense[.]

To establish that evidence is “material” for purposes of Rule 16(a)(1)(E)(i), the

defendant must show only that there is “‘some indication that the pretrial disclosure of


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the disputed evidence would . . . enabl[e] [him] to significantly to alter the quantum of

proof in his favor.’” United States v. Scott, No. 92-6272, 1993 U.S. App. LEXIS 26629,

at * 78 (10th Cir. Oct. 8, 1993) (quoting United States v. Ross, 511 F.2d 757, 763 (5th

Cir. 1975)). “This materiality requirement is not a heavy burden[.]” United States v.

Lujan, 530 F. Supp. 2d 1224, 1234 (D.N.M. 2008). “‘[E]vidence is material as long as

there is a strong indication that it will play an important role in uncovering admissible

evidence, aiding witness preparation, corroborating testimony, or assisting impeachment

or rebuttal.’” United States v. Caro, 597 F.3d 608, 621 (4th Cir. 2010) (quoting United

States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)); see also Lujan, 530 F. Supp. 2d at

1234 (citing Lloyd).

2. Brady/Giglio/Kyles.

The Brady doctrine was established by the Supreme Court in Brady v. Maryland,

373 U.S. 83, 87 (1963):

We now hold that 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 to punishment, irrespective of the good faith or bad faith of the prosecution.

The Court in Kyles v. Whitley, 514 U.S. 419 (1995), described the responsibility of the

government in dealing with Brady:

But the prosecution, which alone can know what is undisclosed, must be assigned the consequence responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable provability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecution succeeds or fails in meeting this obligation, the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of important is inescapable.

Id. at 437-438.


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Moreover, materiality under Brady, as under Rule 16, is not a heavy burden. See,

e.g., United States v. Jackson, 850 F. Supp. 1481, 1503 (D. Kan. 1994) (burden to show

materiality is not “heavy”; allegation that evidence existed that would show bias was

sufficient for Brady and Rule 16 materiality). “Where doubt exists as to the usefulness of

the evidence to the defendant, the government must resolve all such doubts in favor of

full disclosure.” United States v. Safavian, 233 F.R.D. 12, 16, 17 (D.D.C. 2005); see also

Jencks v. United States, 353 U.S. 657, 668-69 (1957) (“only the defense is adequately

equipped to determine the effective use for purpose of discrediting the [g]overnment’s

witness and thereby furthering the accused’s defense”).

Moreover, for the purposes of this case, the Supreme Court has consistently

recognized that impeachment material—that is, material that undermines the credibility

of a witness’s testimony—falls squarely within the Brady doctrine. In Giglio v. United

States, 405 U.S. 150 (1972), the Court made clear that the requirements of Brady apply

with equal force to evidence used to impeach the credibility of a witness. “When the

‘reliability of a given witness may well be determinative of guilty or innocence’,

nondisclosure of evidence affecting credibility falls within [the Brady doctrine].” Id. at

154. In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court “disavowed

any difference between exculpatory and impeachment evidence for Brady purposes[.]”

Kyles, 514 U.S. at 433. Information that may be used to discredit, undermine, or impeach

the veracity of government’s evidence or the way it was obtained has long been deemed

exculpatory and material. See, e.g., Giglio, at 154-155; Scott v. Mullin, 303 F.3d 1222,

1231 (10th Cir. 2002) (Brady applies to substantive and impeachment evidence).


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Evidence that undermines the integrity of the government’s investigation or of the

government’s conclusions is also Brady material. Kyles, 514 U.S. at 446, n. 15. In Kyles,

the Court reaffirmed that information that discredits, undermines, or impeaches the

government’s evidence or the way it was obtained is both exculpatory and material

information: “[w]hen, for example, the probative force of evidence depends on the

circumstances in which it was obtained and those circumstances raise a possibility of

fraud, indications of conscientious police work will enhance probative force and slovenly

work will diminish it.” Id.

3. The Jencks Act.

The Jencks Act, 18 U.S.C. §3500, does not require the same showing of materiality

that is required under Rule 16 and Brady. The Act requires the government to “disclose

to criminal defendants any statement made by a government witness that is in the

possession of the United States once that witness has testified.” United States v. Lujan,

530 F.Supp. 2d 1224, 1232 (D.N.M. 2008) (internal citations omitted). It is not necessary

that a “statement” under Jencks be a flat contradiction of a witness’s testimony. United

States v. Smaldone, 544 F.2d 456, 460 (10th Cir. Colo. 1976). Under the Act, the burden

is on the defendant to show that particular materials qualify as Jencks, but the burden is

not great. Id. (Defendant must show that materials are "Statements" and that they relate

to the subject matter of the testimony of the witness).

Where evidence is not purely Jencks material, but also falls under the Brady/Giglio

rubric, district courts in our circuit have held that “Brady ‘trumps’ the Jencks Act” and

required disclosure of such materials should be consistent with the disclosure of Brady

materials. Lujan, 530 F.Supp. 2d at 1256; United States v. McVeigh, 923 F.Supp. 1310,


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1315-16 (D. Colo. 1996) (“This court is persuaded by the reasoning of the courts holding

that Brady obligations are not altered or modified by the fact that the information is

contained in witness statements or grand jury testimony…What is most persuasive is that

the purpose of the Brady duty of disclosure is to give the defendants a fair opportunity to

prepare their defenses well in advance of the trial. Therefore, such statements should

now be provided.”); see also United States v. Starusko, 729 F.2d 256, 363 (3d Cir. 1984)

(holding that “compliance with the statutory requirements of the Jencks Act does not

necessarily satisfy the due process concerns of Brady); United States v. Taratino, 846

P.2d 1384, 1414 n.11 (D.C. Cir. 1988) (holding the government’s obligations under the

Fifth Amendment Due Process Clause not diluted by Jencks Act).

B. Best practices favor the production of more, not less, discovery.

Best practices and government lawyers’ ethical obligations favor the disclosure of

more, not less discovery for a defendant early in the litigation process. This is a two-part

analysis.

1. Scope of discovery.

First, with regard to the scope of discovery, any question as to the materiality of

evidence must analyzed “collectively” rather than “item by item,” see Kyles, 514 U.S. at

436, and guidance from the DOJ has said that any doubts about materiality should be

resolved in favor of disclosure. See Press Release, U.S. Dep’t of Justice, Attorney

General Announces Increased Training, Review of Process for Providing Materials to

Defense in Criminal Cases (Apr. 14, 2009).4 In January 2010, in light of a string of high-

4 http://www.justice.gov/opa/pr/2009/April/09-opa-338.html.


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profile cases5 in which federal prosecutors were viewed to have failed in their discovery

obligations, the DOJ issued more robust discovery guidelines to help ensure

that prosecutors comply with their obligations under Brady, Giglio, and the Jencks Act.

See Memorandum from David W. Ogden, DOJ Deputy Att’y Gen., to Dep’t. Prosecutors

(Jan. 4, 2010) (instructions as to the process to engage in to determine if disclosure

should occur and a broad “encouragement” to provide more disclosure than is required by

law). These guidelines give instructions on where to look for potentially discoverable

information, direct prosecutors to memorialize and disclose any variances in witness

statements, and encourage prosecutors to review potentially discoverable material

themselves. Id.

Moreover, the United States Attorneys’ Manual (“USAM”) now obligates federal

prosecutors to go beyond their Brady and Giglio obligations and to “take a broad view of

materiality and err on the side of disclosing exculpatory and impeaching evidence.” U.S.

DEP’T OF JUSTICE, U.S. ATTORNEY’S MANUAL §§ 9-5.001(B)(1), (C), (E), (last

updated June, 2010) (suggesting that prosecutors take “a broad view of materiality” and

claiming to require disclosure by a standard that is broader than “‘material’ to guilt”);6

see id. at § 9-5.001(E) (encouraging prosecutors “to undertake periodic training . . .

concerning the government’s disclosure obligations and developments in relevant case

law.”).

5 In 2009, there were significant federal cases involving failure to comply with disclosure obligations that received public attention. See, e.g., United States v. Grace, 526 F.3d 499 (9th Cir. 2008); United States v. Shaygan, 661 F. Supp. 2d 1289 (S.D. Fla. 2009), imposition of sanctions and reprimands abrogated in rehearing en banc at United States v. Shaygan, 652 F.3d 1297 (11th Cir. 2011); United States v. Jones, 620 F. Supp. 2d 163 (D. Mass. 2009). See also Judge Sullivan’s opinion in the Ted Stevens case, United States v. Stevens, No 08-231, 2009 U.S. Dist. LEXIS 125267 (D.D.C. Apr. 7, 2009). 6 http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm.


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The Supreme Court has recently weighed in on the issue of the scope of discovery to

which a defendant is entitled. In Cone v. Bell, 556 U.S. 449 (2009), the Supreme Court

affirmed that a prosecutor’s ethical or statutory obligations may be broader than what has

been enforced under Brady and its progeny. As the Court stated:

Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor's ethical or statutory obligations. See Kyles, 514 U.S., at 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 ("[T]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice . . . . See . . . Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993)"). See also ABA Model Rule of Professional Conduct 3.8(d) (2008) ("The prosecutor in a criminal case shall" "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal"). As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure.

Cone, 556 U.S. at 470, n.15. The New Mexico Rules of Professional Conduct, which

govern prosecutor practice in this State, specifically require disclosure of information

beyond Brady, Rule 16, and the Jencks Act because the professional conduct rules

impose a duty beyond disclosure of material information. Rule 16-308(d) NMRA

(adopting Rule 3.8(d) from ABA Model Rules). The New Mexico ethical duties are

distinct from the constitutional standards that control a court’s post-trial determination of

Brady claims. United States v. Agurs, 427 U.S. 97, 108 (1976) (there is a “significant

practical difference between the pretrial decision of the prosecutor and the post-trial

decision of the judge.”). These standards, much like the DOJ guidance, call for a more

liberal approach to government disclosure of information to the defense.


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2. Timing.

The second aspect of best practices with regard to discovery disclosures is the

question of timing. As a preliminary matter, under Rule 16, the government has a present

and continuing obligation to produce requested material that is in the possession of the

government and materials to the defense.

With regard to Jencks material, many courts, including courts in this jurisdiction,

have acknowledged that early disclosure is necessary to protect the rights of the

defendant and the defendant’s ability to put on a robust defense. Lujan, 530 F.Supp. 2d

at 1254; see also United States v. Minksy, 963 F.2d 870, 876 (6th Cir. 1992); United

States v. Holmes, 722 F.2d 37, 40 (4th Cir. 1983). What that means in terms of timing

depends on the specific facts and circumstances of the case. It is clear, however, that the

Court, pursuant to the Fifth and Sixth Amendments to the U.S. Constitution, Federal Rule

of Criminal Procedure 2, and its inherent supervisory powers, has the authority to order

earlier disclosure than the Jencks Act and in Rule 26.2 require. Moreover, Rule 26.2,

unlike the Jencks Act, contains no language explicitly precluding the disclosure of

witness statements prior to trial. Compare Fed. R. Crim. P. 26.2 with 18 U.S.C. § 3500(a).

Rule 26.2(d) also provides that the court may make an accommodation so that counsel is

provided adequate time to make use of Jencks material: “The court may recess the

proceedings to allow time for a party to examine the statement and prepare for its use.”

Policy supports early disclosure of Jencks material to defense counsel as soon as

practicable following the defense request for disclosure because it will not only assist the

defendant in achieving a fair trial but also serve the public interest in expediting the fair

resolution of criminal cases. See ABA Standards for Criminal Justice, § 11-2.2.


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Moreover, to avoid delays caused by necessary continuances at trial, early disclosure of

Jencks is considered the better practice to alleviate lengthy delays, to promote efficiency,

and to promote the interests of due process. Lujan, 530 F.Supp. 2d at 1254; see also

United States v. Minksy, 963 F.2d 870, 876 (6th Cir. 1992) (“While technically the

government may withhold Jencks Act material until the conclusion of the direct

examination of the witness, the better practice--and that followed in most federal courts

today -- is for the government to produce such material well in advance of trial so that

defense counsel may have an adequate opportunity to examine that which is not in

dispute and the court may examine the rest in camera, usually in chambers.”); United

States v. Tarantino, 846 F.2d 1384, 1415 n.12 (D.C. Cir.), cert. denied, 488 U.S. 840

(1988); United States v. Hinton, 631 F.2d 769, 782 (D.C. Cir. 1980).

For example, in United States v. Hinton, the District of Columbia Circuit recognized

the potential impact of late Jencks disclosure upon the defendant's Sixth Amendment

rights. There, during a suppression hearing, defense counsel was provided with

"voluminous Jencks material" in the form of 302s. Hinton, 631 F.2d at 781. The Circuit

Court held that "in the rush and confusion" of the hearing, counsel failed to recognize

"the critical importance of the 302's" and, as a result, the appellant was deprived of her

constitutional right to the "informed, professional deliberation of counsel." Id. at 782.

With regard to the timing of the disclosure of Brady evidence, the linchpin is the need

for the defense to prepare for trial. “As to the timing of the required disclosures, actual

exculpatory evidence should be disclosed without undue delay.” United States v. Kaplan,

554 F.2d 577, 580-81 (3d Cir. 1977) (delayed disclosure of exculpatory evidence is not

desirable and not encouraged). The untimely disclosure of Brady evidence could be a


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violation of a defendant’s due process rights if the defendant were prejudiced by the

delay. United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009) (“The belated

disclosure of impeachment or exculpatory information favorable to the accused violates

due process when an ‘earlier disclosure would have created a reasonable doubt of guilt.’

…Where the district court concludes that the government was dilatory in its compliance

with Brady, to the prejudice of the defendant, the district court has discretion to

determine an appropriate remedy, whether it be exclusion of the witness, limitations on

the scope of permitted testimony, instructions to the jury or even mistrial.”) “The timing

of the government's disclosures of Brady and Giglio evidence and information to the

defense is important…Disclosure by the government must be made at such a time as to

allow the defense to use the favorable material effectively in the preparation and

presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure.”

United States v. Celis, 608 F.3d 818, 835 (D.C. Cir. 2010) (internal citations omitted).

The facts and circumstances of this case strongly support an early disclosure of

Jencks, enforcement of the government’s obligations under Rule 16, and a reasonable

schedule set for the disclosure of Brady material to allow for any contested litigation

regarding the scope of the government’s disclosure duties to take place in a deliberate,

thorough manner before trial.

IV. SPECIFIC REQUESTED MATERIALS.

The government may not want to delve into the Martinez administration’s motivation

in prosecuting Estrada, but Estrada is entitled to do so at trial. The requested materials

are clearly material to the preparation of the defense. Estrada requests this Court enter an


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order compelling the production of the materials outlined below pursuant to Rule 16,

Brady, and Jencks.

A. Information regarding the pending criminal investigation into racino pay-to-play scheme.

As outlined in the fact section, there is a pending federal investigation into whether

the Martinez administration and/or other individuals violated the law in connection with

the Downs racino deal. But Martinez and McCleskey have both denied the existence of

this federal investigation. Accordingly, the defense has made the following requests for

disclosure under Brady and Rule 16:

1. documents or information suggesting that the public statements of

McCleskey and Martinez denying the existence of a federal

investigation regarding the award of the lease for the Albuquerque

Downs racino are not true;

2. documents or information suggesting that the public statements of

McCleskey and Martinez disclaiming knowledge of a federal

investigation regarding the award of the lease for the Albuquerque

Downs racino are not true; and

3. all documents regarding possible illegal or improper conduct by

Governor Martinez, Pat Rogers, Jay McCleskey, or others in

connection with the award of the lease for the Albuquerque Downs

racino in 2011.

The requested information is essential to the preparation of Estrada’s defense; there

can be no question that Estrada easily satisfies the materiality requirement under both

Rule 16 and Brady. There is a strong link between the Martinez administration’s push for


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the prosecution of Estrada and its efforts to minimize or deflect attention from the racino

scandal after the public release of the emails allegedly intercepted by Estrada. This is

shown by the timing of Martinez’s and McCleskey’s contact to the FBI, as well as

McCleskey’s repeated advocacy for a prosecution, as evinced by his 20 or more contacts

with the FBI. Moreover, the Martinez administration’s efforts to prosecute Estrada can

be reasonably interpreted as retaliation against him for the alleged exposure of improper

and potentially illegal conduct by the administration. The requested materials are

necessary for a robust cross-examination of the government’s witnesses and to determine

which witness the defense may wish to subpoena to testify at trial.

As the Supreme Court noted in Davis v. Alaska:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested…[T]he cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness….A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand…We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Davis v. Alaska, 415 U.S. 308, 316-317 (1974). The credibility of Martinez and other

administration witnesses is such a substantial issue for the defense that Estrada could not

reasonably prepare his defense without access to this impeachment material. See, e.g.,

United States v. Danny Burnett, 12-CR-2332-CVE (March 8, 2013 Opinion and Order) at

19.

There is another, equally important reason for the disclosure of this information.

Martinez and others in her administration may be subjects or targets of the federal


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investigation. Their desire to curry favor with the same government that is investigating

them for potential illegal activity can be a strong motivator in how to testify regarding the

allegations against Estrada. The defense must have access to the requested materials to

filly explore the witnesses’ self-interest or bias in favor of the government. See Burr v.

Sullivan, 618 F.2d 583, 586-587 (9th Cir. 1980) (“A desire to cooperate may be formed

beneath the conscious level, in a manner not apparent even to the witness, but such a

subtle desire to assist the state nevertheless may cloud perception.”).

These materials are discoverable under both Brady and Rule 16. To the extent that

some of the materials also may fall under Jencks, in this jurisdiction, as noted above,

Brady “trumps” Jencks.

B. Transcript of Agent Boady’s testimony in support of the superseding indictment.

In its initial production of discovery to the defense, the government included the

grand jury transcripts associated with the original indictment. The government’s

disclosure of the transcript allowed Estrada and his counsel to discover Boady’s false

statements to the grand jury. However, the government now refuses to turn over the

second grand jury transcript. It is hard to imagine a sound reason for the government’s

reluctance. The defense surmises that the government is hesitant to expose its case agent

as having either perjured himself at the grand jury or having botched the investigation so

badly that the government was forced to correct his error with a superseding indictment.

Regardless of the reasons, the information contained in the second grand jury

transcript is within the scope of Brady/Kyles. Due process requires disclosure of any

evidence that provides grounds for the defense to attack the reliability, thoroughness, and

good faith of the police investigation, to impeach the credibility of the government’s


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witnesses, or to bolster the defense’s case against prosecutorial attacks. Kyles, 514 U.S.

at 442, n.134, 445-451. Moreover, the defense should be given the opportunity to review

to grand jury transcript to allow it to determine if there is a legal or factual basis to

challenge the additional counts of false statements added to the superseding indictment.

(Doc. 23.)

C. Materials containing information about the concerns, beliefs, opinions, and predictions of Martinez, McCleskey, and other members of the Martinez campaign and administration listed in Subsection E(16) of the Defense’s June 14, 2013 discovery letter (attached as Exhibit A) , about the potential and actual public reaction to and political consequences of the public disclosure of any email addressed to any address at susana2010.com.

The government is expected at trial to emphasize the narrative that Estrada violated

the privacy rights of the alleged victims. The government’s selective indictment—to

indict Estrada for only the alleged interception of non-political emails—supports this

inference. As explained in the fact section, the reaction of Martinez and her inner circle

to the public disclosure of emails at issue in this matter is critical to establish other

reasons Martinez may have had to promote actively the prosecution of Estrada. The

defense must be permitted to delve into the motivations of Martinez and other witnesses

to challenge the government’s theme that this case is about privacy, not politics.

For the same reasons the racino information is material under both Rule 16 and Brady,

the requested material here is essential to reveal “possible biases, prejudices, or ulterior

motives of the witness as they may relate directly to issues or personalities in the case at

hand.” Davis, 415 U.S. at 317.

D. Jencks material.


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The defense also requests the Court order early disclosure of Jencks material that does

not otherwise overlap with Rule 16 and Brady/Giglio. It appears from an inventory of

the evidence produced by the government so far that there may be substantial Jencks

material, including but not limited to:

• Notes from two interviews with Martinez;

• An email and letter from Paul Kennedy (the Governor’s lawyer) to then-United

States Attorney Kenneth Gonzalez.

The defense anticipates that the production of Jencks material will raise issues to be

addressed prior to trial, including, but not limited to, issues surrounding the “raw notes”

of Boady and other government agents. Without adequate lead-time, the defense will be

hobbled in its ability to file appropriate motions to compel and motions in limine.

The defense’s access to the prior statements of witnesses is key in a case such as this,

where the government’s case rests almost entirely on the testimony of witnesses, rather

than the introduction of physical evidence. The apparent volume of Jencks material,

coupled with the specific circumstances of this case requires early disclosure.

Moreover, delay in producing the Jencks material cannot be justified in this case. The

government's only possible basis for resisting both early disclosure of Jencks and timely

disclosure of Brady/Giglio is to claim that such disclosure will pose a threat to the

government's witnesses. This is not a concern in this case. The withholding of Jencks

would accomplish nothing more than technical adherence to the rule, but would be

contrary to the spirit of a more open exchange of discovery in federal cases.


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CONCLUSION

For these reasons, Estrada respectfully requests that the Court order the

government to produce of the remaining Rule 16 material immediately and to make full

disclosure of Brady and Jencks material on or before May 16, 2014 (which coincides

with the government’s disclosure of witnesses).

In addition, Estrada respectfully requests that the Court set a briefing schedule so

that parties may fully brief any contested Brady and/or Jencks issues. The defense

proposes the following schedule:

• May 30, 2014: Defense to file any motions to compel based on

Brady/Jencks disclosures;

• June 13, 2014: Government responses due;

• June 20, 2014: Defense replies due.

This schedule would not only assist the Court in ensuring that Estrada receives full

discovery and a fair trial. It would also ensure that litigation regarding Brady and Jencks

disputes is conducted in an orderly, thorough, and deliberate manner. In addition, the

proposed schedule would not work any unfairness on the government; the government

would have more than two months to comply.

Respectfully submitted,

s/ Molly Schmidt-Nowara Zachary A. Ives [email protected] Mary (Molly) Schmidt-Nowara [email protected] GARCIA IVES NOWARA 201 Third Street NW Suite 480 Albuquerque, NM 87102

505.899.1030


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CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2014, I filed the foregoing document

electronically through the CM/ECF system, which caused all counsel of record to be

served by electronic means, as more fully reflected in the Notice of Electronic Filing.

/s/Molly Schmidt-Nowara

Molly Schmidt-Nowara
