Opinion
No. 7:12-CR-37-FA-10
06-12-2014
UNITED STATES OF AMERICA v. LUIS RENTERIA MONICA RENTERIA-GONZALEZ
MEMORANDUM OPINION AND ORDER
On March 5, 2014, defendant, Luis Renteria, appeared in person and by counsel, Andrew McCoppin, and the United States appeared by Denise Walker, Assistant United States Attorney, for the purpose of considering defendant's pretrial motions (Docs. 331-341). The government filed a single response addressing all of defendant's motions (Doc. 342). The court disposed of the motions as follows for reasons placed on the record and those expressed below.
Background
On September 25, 2013, defendant Luis Renteria, was charged by way of Criminal Complaint. He was taken into custody on September 28, 2013. On October 24, 2013, a federal grand jury sitting in the Eastern District of North Carolina returned a Second Superseding Indictment charging the defendant and his co-conspirators with multiple counts. The defendant was charged with conspiracy to commit kidnapping in violation of Title 18, United States Code, Sections 1201(a), conspiracy to commit murder for hire in violation of Title 18, United States Code, Section 1958(a), and two counts of use of facilities of interstate commerce in the commission of a murder, in violation of Title 18, United States Code, Section 1958(a). On March 5, 2014, at Luis Renteria's pretrial motions hearing and arraignment, the Assistant United States Attorney informed the court that it would be seeking a Third Superseding Indictment in this matter. That Third Superseding Indictment was filed on March 26, 2014, and added as a defendant Monica Renteria-Gonzalez.
Although the pretrial motions were filed before the Third Superseding Indictment was returned, the court has considered the arguments in the motions as if they were addressed to the Third Superseding Indictment. The Third Superseding Indictment did not render the motions moot.
I. Motion for Leave to File Pretrial Motions Out of Time (Doc. 341)
Defendant filed the pretrial motions on February 23, 2014 -two days after the February 21 deadline. Defendant moved for leave to file the motions out of time. Counsel for defendant states that the motions were late due to "unanticipated circumstances." (Doc. 341 at 1). The government initially objected to the late filing, however such objection was withdrawn at the hearing. The court GRANTS the motion (Doc. No. 341).
II. Motion for Early Release of Jencks Material (Doc. 331)
The Jencks Act, codified at 18 U.S.C. § 3500, provides that certain statements made by government witnesses may not be the subject of subpoena, discovery, or inspection until after that witness has testified on direct examination at the trial. See 18 U.S.C. § 3500(a) (2000). After the witness has testified on direct examination and upon the defendant's motion, however, the court must order the government to produce any statement made by the witness that comports with § 3500(e). See id. § 3500(b). It is then within the court's discretion whether and for how long to recess proceedings for such time as is necessary for the defendant to examine the statement. See id. § 3500(c).
Under the plain language of the statute, it is clear that a court cannot require the government to produce Jencks Act statements until after the witness has testified. But as the Fourth Circuit has stated, "nothing in the Jencks Act prevents the government from voluntarily disclosing covered material prior to trial . . . ." United States v. Lewis, 35 F.3d 148, 151 (4th Cir.1994). Such early disclosures help both the government and the defendant. See id. ("We prefer to encourage such early disclosures. In fact, we believe that both sides benefit when the government's file is completely open to a criminal defendant."). At the hearing, the government agreed to provide defense counsel with Jencks material thirty days prior to the trial date. To the extent that the defense seeks relief beyond this deadline, the motion (Doc. No. 331) is DENIED.
III. Motion in Limine to Prohibit Unfair and Improper Procedures or Tactics (Doc. 332)
Next, defendant seeks to prevent the government from (1) "[p]acking the courtroom with family members wearing buttons, patches, badges or other insignia . . . [related to] the victim or any other law enforcement officer who testifies at trial;" (2) permitting agents or law enforcement from making faces or exhibiting any kind of response to testimony or evidence presented at trial; and (3) "[l]ining the front rows of the courtroom with victims or law enforcement officers in a 'show of solidarity' with the victims or any testifying agents or expert." (Doc. No. 332 at 1-2).
The Assistant United States Attorney acknowledges her governance by the Local Criminal Rules of the Eastern District of North Carolina and, in particular, Local Rule 57.1(H) which provides, in pertinent part, that counsel appearing in the Eastern District "shall conduct themselves with dignity and propriety." According to the government, the local rules prohibit the behavior outlined in defendant's motion. As such, the motion (Doc. No. 332) is DENIED as moot. To the extent that counsel for the defendant believes that conduct at trial runs afoul of these notions of dignity and propriety, he may so object at that time.
IV. Motion for Pretrial Hearing to Determine Existence of the Conspiracy and Admissibility of Alleged Conspiratorial Statements and to Exclude Co-Conspirator Hearsay (Doc. 333)
Defendant seeks exclusion of co-conspirator statements used to prove the charged conspiracies as a violation of the Federal Rules of Evidence and Commerce Clause. In the alternative, the defendant seeks to have this court hold a pre-trial hearing regarding the admissibility of those same statements pursuant to Bourjaily v. United States, 483 U.S. 171 (1987).
Federal Rule of Evidence 801(d)(2)(E) provides, as an exception to the hearsay rule, for the admission of statements by co-conspirators made during the course and in furtherance of the conspiracy. To admit evidence under this rule, the government must show, by a preponderance of the evidence: 1) that there was a conspiracy involving the declarant and the party against whom admission of the evidence is sought, and 2) that the statements at issue were made in furtherance and in the course of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987); U.S. v. Smith, 441 F.3d 254, 261 (4th Cir. 2006). The Fourth Circuit has held that an alleged co-conspirator's statements may be considered in determining the existence of the conspiracy. U.S. v. Neal, 78 F.3d 901, 905 (4th Cir. 1996).
The Fourth Circuit does not require a hearing to determine the existence of a conspiracy before statements can be admitted under Fed. R. Evid. 801(d)(2)(E). United States v. Hines, 717 F.2d 1481, 1488 (4th Cir. 1983). As the Fourth Circuit pointed out in United States v. Blevins, "[i]nstead, we allow a trial court to conditionally admit co-conspirators' statements subject to the subsequent satisfaction of the requirements for their admission." 960 F.2d 1252, 1256 (4th Cir. 1992) (citing Hines, 717 F.2d at 1488). "Moreover, we do not believe that a trial judge is required to set out on the record his reasons for making this evidentiary ruling . . . ." Id. As such, the motion (Doc. No. 333) is DENIED.
V. Motion to Disclose Juvenile Records of Government Witnesses (Doc. 334)
Next, defendant seeks a court order that compels the government to disclose the juvenile records of the witnesses the government intends to call at trial. In Davis v. Alaska, 415 U.S. 308, 309 (1974), the Supreme Court granted certiorari in order to decide "whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent when such an impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency." Id. The Court held that, under the facts presented in that case, that "[t]he State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Id. at 320. The Court emphasized that the witness was then currently on probation for burglary, that he was a crucial identification witness for the prosecution, the accuracy of his testimony was a key element in the State's case, defense "counsel was unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked the degree of impartiality expected of a witness at trial[,]" and "[s]erious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry." Id. at 311-320.
In his concurrence, Justice Stewart emphasized that "the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions." Id. at 321. Federal Rule of Evidence 609(d) states that "[e]vidence of juvenile adjudications is generally not admissible." However, the court may "in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence." Fed.R.Civ.P. 609(d).
Nevertheless, where there is ample evidence - apart from any juvenile adjudications - "with which to impeach the witness' credibility in general and bias in particular[,]" the court may exclude evidence of the witness' juvenile adjudications. United States v. Ciro, 753 F.2d 248, 249 (2d Cir. 1985); United States v. Call, 73 F. App'x 268, 271 (9th Cir. 2003) (evidence of witness' juvenile conviction was inadmissible where the jury heard testimony about witness' numerous adult convictions, his testimony about selling drugs, and his reduced sentence on another conviction due to his cooperation in the present case); United States v. McGuire, 200 F.3d 668, 678 (10th Cir. 1999) (finding that cross-examination was sufficient to attack witness' credibility without reference to witness' juvenile adjudications); United States v. Williams, 963 F.3d 1337, 1341 (10th Cir. 1992) (finding that since substantial evidence was introduced to attack the witnesses' credibility, the defendants' ability to cross-examine the witnesses was not substantially impaired by the exclusion of evidence of prior crimes); United States v. Ashley, 569 F.2d 975, 979 (5th Cir. 1978) (holding there is no constitutional violation if the witness could otherwise be impeached through the use of other cross-examination).
Because defendant has not specified those witnesses for whom he wants the juvenile records, it is impossible to determine if there is other evidence which may be used to impeach their credibility. For example, if defendant is merely referring to his co-defendants in this case, it would seem that their entry of guilty pleas would provide ample opportunity for impeachment. As such, this motion (Doc. No. 334) is tabled until a more appropriate time.
VI. Motion for Production of Favorable Evidence (Brady Motion) (Doc. 335)
Defendant seeks an order requiring the government to disclose all favorable evidence pursuant to Brady v. Maryland. 373 U.S. 83 (1962). Defendant also specifically seeks certain unredacted copies of the discovery he has already been provided. Essentially defendant contends that only he and his counsel can determine if the evidence is exculpatory and they need the unredacted statements to do so. According to the government, defendants have no right to pretrial discovery of witness statements. United States v. Peoples, 748 F.2d 934, 936 (4th Cir. 1984), and, therefore, the motion should be denied. The government contends that it has already gone above and beyond what is required by providing the redacted statements.
The government may not withhold evidence favorable to the accused upon request. Brady v. Maryland, 373 U.S. 83, 87 (1963). However, there is no Brady violation as long as the government discloses the relevant material in time for the defendant to effectively use the material at trial. United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985) (finding no violation where the evidence was disclosed at trial); United States v. Le, 306 F.Supp.2d 589, 592 (E.D. Va. 2004). The government represents that it is prepared to provide appropriate Brady evidence in plenty of time to allow defendant(s) to use it at trial. The AUSA in this matter is fully aware of her responsibilities under Brady. As such, the motion (Doc. No. 335) is DENIED to the extent that it goes beyond the previously determined deadlines.
VII. Motion for Notice of Intent to Use 404(b) Evidence (Doc. 336)
Under Rule 404(b) of the Federal Rules of Evidence, the government is permitted to introduce at trial evidence of other crimes, wrongs, or acts not charged in the indictment for certain limited purposes. However, upon request by the defendant, the government must "provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial." Fed. R. Evid. 404(b). Consequently, a defendant is not entitled to immediate production by the government of evidence of specific instances of conduct that it intends to introduce at trial, but is entitled to reasonable notice before trial of the government's intent to introduce 404(b) evidence and its general nature. Even where the charges are serious, providing 404(b) notice one week prior to trial may be sufficient. United States v. Graham, 468 F. Supp. 2d 800, 802 (E.D.N.C. 2006); see also United States v. Swain, 2008 WL 717720, at *1 (E.D.N.C. 2008).
As to the content of the notice, defendant requests that the government be required to disclose "the name and address of each such witness who will testify relating to the specific evidence within the provisions of Rule 404(b) and/or a description of the conduct which the government intends to introduce in this regard." (Doc. No. 336 at 2). Recent cases in the Eastern District of North Carolina and elsewhere have concluded that the government is only required to provide notice of the general nature of the evidence and is not required to provide the actual evidence. See, e.g., Graham, 468 F. Supp. 2d 800, 802 (determining that the government need not disclose the names and addresses of witnesses and tangible evidence the government would use to introduce the 404(b) evidence); United States v. Brown, 2011 WL 6046370, at *2 (E.D.N.C. Dec. 5, 2011) ("The rule does not, however, entitle the defendant to discovery of the 404(b) evidence itself."). As has been stated,
[T]he Rules of Evidence are not rules of discovery. The purpose of the Rule 404(b) notice provision, to prevent surprise during trial, does not support providing a defendant with materials which the Government possesses and plans to offer at trial. Instead, the Defendants need only receive sufficient notice "to apprise the defense of the general nature of the evidence of extrinsic acts." Fed. R. Evid. 404 (Notes of Senate Committee on the Judiciary on the 1991 Amendment). Nothing in the rule indicates that the defendant is entitled to receive documents or other evidence from which the Government derives the prior bad act evidence. The Government merely need provide the Defendants with information sufficient to indicate the general nature of the evidence.U.S. v. Williams, 792 F. Supp. 1120, 1134 (S.D. Ind. 1992). Accordingly, this motion (Doc. 336) is DENIED.
VIII. Motion to Sequester Witnesses (Doc. 337)
The sequestration of witnesses is go verned by Federal Rule of Evidence 615, which states, "[a]t a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony." Fed. R. Evid. 615. Because Rule 615 plays an important truth-seeking role, it carries a presumption favoring sequestration. See United States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986). The district court may, however, allow the government's chief investigating agent to remain in the courtroom throughout the proceedings, even if he is expected to testify. United States v. Parodi, 703 F.2d 768, 773 (4th Cir. 1983). The government agrees that sequestration is mandatory but asks, in accordance with Parodi, that its agent be permitted to stay in the courtroom.
Accordingly, the court GRANTS the motion (Doc. 337) to the extent that all witnesses are to be sequestered and DENIES the motion to the extent that it seeks to sequester the lead case agent throughout the duration of the trial.
IX. Motion to Dismiss for Lack of Jurisdiction (Doc. 338)
Defendant next moves to dismiss the superseding indictment, arguing that an "insufficient commerce clause nexus" exists. In his very brief and cursory motion, the defendant contends that each act alleged in the superseding indictment involves solely intrastate activity with no effect on interstate commerce, and that the statutes relied upon in the indictment are therefore unconstitutional as applied and on their face. Defendant is charged with conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(a), conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958(a), and two counts of use of facilities of interstate commerce in the commission of a murder in violation of 18 U.S.C. § 1958(a). Under the current commerce clause regime, Congress has the authority to enact these statutes.
Under the Commerce Clause of the U.S. Constitution, Congress may regulate three broad categories of activity: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) those activities which substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558 (1995).
The Fourth Circuit has already addressed the same argument made by defendant with respect to 18 U.S.C. § 1958(a), the murder for hire statute. There, Judge Wilkinson stated that "[t]his argument fails by a wide margin." United States v. Runyon, 707 F.3d 475, 489 (4th Cir. 2013). The court concluded that the murder for hire statute does not exceed Congress's authority under the Commerce Clause. This result is in line with every circuit to address this issue. See United States v. Marek, 238 F.3d 310 (5th Cir. 2001); United States v. Mandel, 647 F. 3d 710 (7th Cir. 2011); United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007). Runyon is dispositive of defendant's motion to the extent it alleges that 18 U.S.C. § 1958(a) is unconstitutional.
With respect to the conspiracy to commit kidnapping charge, the Federal Kidnapping Act was expanded in 2006. Previously, it only applied when the kidnapped person was transported in interstate commerce. Now, however, it even applies when "the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense." 18 U.S.C. § 1201(a)(1) (emphasis supplied). The only Court of Appeals that has had occasion to address constitutionality of this new broad provision concluded that it is a constitutional exercise of Congress's authority under the Commerce Clause to regulate the instrumentalities of interstate commerce. See United States v. Dais, 2014 WL 982970, *6-7 (6th Cir. Mar. 14, 2014). Furthermore, every district court to address the issue has reached the same conclusion. See United States v. Mitchell, 2013 WL 5377869 (N.D. Tex. Sept. 26, 2013); United States v. Taylor, 2012 WL 3522528 (S.D. Ala. Aug. 14, 2012); United States v. Jacques, 2011 WL 1706765 at *10-11 (D. Vt. May 4, 2011); United States v. Ochoa, 2009 WL 3878520 at *2-3 (D.N.M. Nov. 12, 2009). This court is inclined to agree.
Notably, the case defendant relies on most - United States v. Maxwell, 386 F. 3d 1042 (11th Cir. 2004) - is no longer good law. There, the Eleventh Circuit reversed a child pornography conviction holding that possession of a computer disk containing child pornography does not establish federal jurisdiction under the commerce clause merely because the disk traveled in interstate commerce before the pornography was copied onto it. The Supreme Court vacated the opinion and remanded for further consideration in light of Gonzales v. Raich, 545 U.S. 1 (2005). See United States v. Maxwell, 546 U.S. 801 (2005). So, any reliance on Maxwell is entirely misplaced.
Based on the foregoing, defendant's motion (Doc. 338) is DENIED.
X. Motion for Inculpatory Statements (Doc. 339)
Next, defendant moves for an order requiring the disclosure of any inculpatory statements made by defendant. The government contends that it has provided all inculpatory statements of the defendant in its possession and that, should additional statements become available, it will provide those statements as soon as possible. Accordingly, the motion is DENIED as moot.
XI. Motion to Disclose Promises and Inducements (Doc. 340)
Finally, defendant moves for an order requiring the government to disclose promises and inducements made to prospective government witnesses. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, the government is required to disclose evidence that is "both favorable to the accused and 'material either to guilt or to punishment.'" United States v. Bagley, 473 U.S. 667, 674 (1985) (quoting Brady, 373 U.S. at 87). That requirement includes disclosure of evidence that could potentially be used to impeach or discredit a government witness. Giglio v. United States, 405 U.S. 150, 154 (1972). Accordingly, the government must disclose all plea agreements and promises of leniency, immunity, or other similar inducements to testify that have been given to witnesses. United States v. Stroop, 121 F.R.D. 269, 274 (E.D.N.C. 1988). Although a specific mandate on the timing of these disclosures has not been established, the Fourth Circuit has held that there is no violation of due process so long as the government discloses exculpatory and impeachment evidence to a defendant "in time for its effective use at trial." United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985).
According to the government, it has already provided all information covered by Giglio and, should further information come to light, it will be provided prior to trial. As such, this motion is also DENIED as moot.
Conclusion
For the reasons expressed above, the court disposes of defendant's pretrial motions as follows:
1. Defendant's motion for leave to file pretrial motions out of time (Doc. 341) is GRANTED.
2. Defendant's motion for early release of Jenck's material (Doc. 331) is DENIED. The government has agreed to provide defense counsel with Jencks material thirty days prior to the trial date.
3. Defendant's motion in limine to prohibit unfair and improper procedures or tactics (Doc. 332) is DENIED as moot.
4. Defendant's motion for pretrial hearing to determine existence of the conspiracy and admissibility of alleged conspiratorial statements and to exclude co-conspirator hearsay (Doc. 333) is DENIED.
5. Defendant's motion to disclose juvenile records of government witnesses (Doc. 334) is tabled until a more appropriate time.
6. Defendant's motion for production of favorable evidence (Brady motion) (Doc. 335) is DENIED to the extent it goes beyond the previously determined deadlines.
7. Defendant's motion for notice of intent to use 404(b) evidence (Doc. 336) is DENIED.
8. Defendant's motion to sequester witnesses (Doc. 337) is GRANTED in part to the extent that all witnesses are to be sequestered and DENIED in part to the extent that it seeks to sequester the lead case agent throughout the duration of the trial.
9. Defendant's motion to dismiss for lack of jurisdiction (Doc. 338) is DENIED.
10. Defendant's motion for inculpatory statements (Doc. 339) is DENIED as moot.
11. Defendant's motion to disclose promises and inducements (Doc. 340) is DENIED as moot.
The Clerk is directed to send a copy of this Memorandum Opinion and Order to counsel of record, to the United States Marshal for the Eastern District of North Carolina, and to the Probation Office of this court.
IT IS SO ORDERED on this 12th day of June, 2014.
ENTER:
__________
David A. Faber
Senior United States District Judge