Opinion
CAUSE NO. EP-21-CR-1695(1)-KC
2022-09-08
UNITED STATES of America v. (1) Gabriela Ponce DE LEON
Richard Douglas Watts, U.S. Attorney's Office, El Paso, TX, for United States of America. Alex A. Melendez, Public Defender, Federal Public Defender, El Paso, TX, for Gabriela Ponce De Leon.
Richard Douglas Watts, U.S. Attorney's Office, El Paso, TX, for United States of America. Alex A. Melendez, Public Defender, Federal Public Defender, El Paso, TX, for Gabriela Ponce De Leon. ORDER KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered Defendant's Motion for Sanctions, ECF No. 31, in the above-captioned case. This dispute centers on a lost video recording ("Hallway Video") of the hall outside the cell in which Defendant was detained following her arrest on felony drug trafficking charges. Approximately one week after her arrest, Defendant requested that the Government preserve the Hallway Video. Nonetheless, nearly three months later, that video was overwritten pursuant to an automated process, without ever being produced. Defendant asserts that the Hallway Video would have shown she was subjected to an unlawful custodial interrogation, undermining the voluntariness of her subsequent Miranda waiver and confession. Because the evidence shows that the Hallway Video was destroyed in bad faith, resulting in significant prejudice to Defendant which cannot be cured by a trial continuance, the Court finds sanctions are necessary. Accordingly, and for the reasons set forth below, the Motion for Sanctions is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
The Government alleges that on September 26, 2021, Defendant Gabriela Ponce de Leon attempted to enter the United States from Mexico at the Paso del Norte Port of Entry in El Paso, Texas. Compl. 2, ECF No. 1. Defendant was driving a vehicle with four passengers, including her three children, two of them minors. Id. The vehicle was referred to secondary inspection, where a narcotic detector dog alerted to the presence of a controlled substance. Id. A search of the vehicle revealed approximately 110 pounds of bundles containing methamphetamine. Id. Defendant was taken into custody, where she gave an incriminating statement to Homeland Security Investigations ("HSI") Special Agent David Ortiz. Id.
The Court refers to facts alleged in the Complaint for context only, making no finding as to their veracity.
On October 1, 2021, a Preliminary Detention Hearing was held before United States Magistrate Judge Leon Schydlower, at which Agent Ortiz testified. See Oct. 1, 2021, Prelim. Detention Hr'g Tr. ("Detention Hr'g Tr.") 3-12, ECF No. 23. During the hearing, Defense counsel briefly questioned Agent Ortiz about his September 26 interrogation of Defendant. Id. at 9-12. On October 5, 2021, Defendant was released on bond. See Appearance Bond Filed, ECF No. 10.
On October 20, 2021, Defendant was charged in a four-count indictment with Conspiracy to Import, Importation, Conspiracy to Possess with Intent to Distribute, and Possession with Intent to Distribute 500 grams or more of a mixture or substance containing methamphetamine. Indictment, ECF No. 11. On October 22, 2021, the Court entered its Standing Discovery Order, ECF No. 15. The Court ordered, inter alia, that:
Upon the request of the defendant, the Government shall permit the defendant to inspect and copy the following items or copies thereof, or supply copies thereof which are within the possession, custody or control of the Government, the existence of which is known, or by the exercise of diligence could become known to the Government:Id. § I(A).
. . .
4. Books, papers, documents, photographs, tangible objects, buildings or places which are material to the defense
. . . .
On February 22, 2022, Defendant filed the Motion for Sanctions. Defendant asserted that she had requested video evidence, including the Hallway Video, from the Government on October 4, 2021. Mot. Sanctions 1, 3. Defendant claimed the Hallway Video would show that Agent Ortiz interrogated her while she was in custody but before she was Mirandized, at a Customs and Border Protection ("CBP") facility at the port of entry on September 26. Id. at 2. Defendant repeatedly followed up with the Government in an effort to obtain the video evidence, and on January 18, 2022, Defendant asked the Court to compel its production. See Motion to Compel, ECF No. 26. But on January 25, 2022, the Government informed Defendant that the Hallway Video had likely been destroyed, pursuant to an automated process by which videos are overwritten every ninety days. Mot. Sanctions 3.
On July 28, 2022, and August 2, 2022, the Court held a hearing on the Motion for Sanctions. See July 28, 2022, Hr'g Tr. ("Sanctions Hr'g Tr. Pt. 1"), ECF No. 76; Aug. 2, 2022, Hr'g Tr. ("Sanctions Hr'g Tr. Pt. 2"), ECF No. 78. Both parties subsequently filed supplemental briefs. See Def. Supp. Br., ECF No. 77; Gov. Supp. Br., ECF No. 80. Defendant also filed a Response to the Government's Supplemental Brief, ECF No. 83.
II. DISCUSSION
A. Standard
When a criminal defendant requests that the Government provide an item that is material to preparing their defense, the Government must make the item available for inspection and copying, so long as it is within the Government's possession, custody, or control. Fed. R. Crim. P. 16(a)(1)(E)(i). The Government's "possession, custody, or control" is not limited to the prosecutor's files. United States v. Scott, No. 17-181, 2021 WL 2210925, at *2 & n.8 (E.D. La. June 1, 2021) (collecting cases). Materials in the possession of another federal agency are often considered to be within the Government's possession for purposes of Rule 16, particularly where that agency contributes significantly to the investigation or prosecution. Id.; see also United States v. Santiago, 46 F.3d 885, 893-94 (9th Cir. 1995) ("[A]gency involvement in the investigation [is] a sufficient, but not necessary, factor to show that the prosecution was in 'possession' of the agency's information."); United States v. Graham, No. CR. 03-50020-02, 2008 WL 11450763, at *3 (D.S.D. June 20, 2008) ("Rule 16 . . . imposes on the prosecutor a duty to seek out potentially exculpatory evidence known to others acting for the government, including . . . other law enforcement officers." (citing Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995))).
If a party fails to disclose evidence in compliance with Rule 16, the court may enter any order "that is just under the circumstances." Fed. R. Crim. P. 16(d)(2)(D). Courts exercise broad discretion over the imposition of discovery sanctions, so long as they "carefully weigh several factors." United States v. Swenson, 894 F.3d 677, 684 (5th Cir. 2018) (quoting United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000)). Those factors are "1) the reasons why disclosure was not made; 2) the amount of prejudice to the opposing party; 3) the feasibility of curing such prejudice with a continuance of the trial; and 4) any other relevant circumstances." Id. (quoting Garrett, 238 F.3d at 298). When sanctions are levied, the Court "should impose the least severe sanction that will accomplish the desired result—prompt and full compliance with the court's discovery orders." Id. (quoting Garrett, 238 F.3d at 298).
B. Analysis
Defendant asks the Court to impose sanctions on the Government for failing to provide and then destroying the Hallway Video, which Defendant claims would show Agent Ortiz subjecting her to an un-Mirandized custodial interrogation. Mot. 2, 5. Defendant principally seeks an order dismissing the indictment with prejudice. Id. at 7. In the alternative, she requests the exclusion of any statements made by Defendant while in custody on September 26, 2021. Id. As a final contingency, Defendant seeks to introduce evidence of spoliation at trial, accompanied by a spoliation instruction to the jury. Id. at 7-8.
Applying the Garrett factors, the Court finds that sanctions are warranted. As to the form of those sanctions, exclusion of Defendant's custodial statements and any testimony regarding Defendant's statements, as well as any testimony by Agent Ortiz, is the least severe means of upholding the Court's discovery orders.
Defendant styles her request as a "Motion for Sanctions" and references the Garrett standard for pretrial discovery sanctions. Mot. 6-7. Yet both Defendant and the Government also reference the due process standards for disclosure of evidence favorable to the accused, as established by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See, e.g., Mot. 4-5; Resp. 5-6. It is not clear, at this stage of the case, that the assertion of a Brady right would be timely. See United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ("The rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 involves the discovery, after trial of information which had been known to the prosecution but unknown to the defense." (emphasis added)); Alvarez v. City of Brownsville, 904 F.3d 382, 392 (5th Cir. 2018) ("[T]he right memorialized in Brady is a trial right." (quoting United States v. Mathur, 624 F.3d 498, 506-07 (1st Cir. 2010))); United States v. Davis, No. C.R.A. 01-282, 2003 WL 1825602, at *2 (E.D. La. Apr. 8, 2003) ("[A] Brady violation becomes a concern for courts only after trial, when courts are able to determine whether a nondisclosure deprived a defendant of a fair trial." (citing Garrett, 238 F.3d at 303-04 (Fish, J., concurring))). The Court further notes that the standards under Garrett and Brady are remarkably similar—both hinge on an assessment of (1) the reasons evidence was withheld and (2) the resulting prejudice. But because this case is in the discovery phase, the Court confines its analysis to whether and to what extent Rule 16 sanctions are warranted.
1. The reasons why disclosure was not made
As a threshold matter, it is clear that a violation of Rule 16 and the parallel requirements of the Court's Standing Discovery Order has occurred. The Government admits that it received Defendant's initial preservation request and several subsequent follow-ups for the Hallway Video. See Resp. 3-4, ECF No. 40. And it admits that the Hallway Video "was not preserved or produced . . . ." Id. at 7. But the parties sharply dispute the reasons for the Government's discovery violation. Defendant argues that Agent Ortiz purposely suppressed the Hallway Video to hide evidence of his unlawful interrogation of Defendant. Mot. 6. The Government concedes that "errors were made," but characterizes those errors as oversights by CBP, rather than any intentional misconduct by Ortiz. Resp. 7; Gov. Supp. Br. 4 n.3.
Under the first Garrett factor, severe sanctions are only warranted when discovery violations are committed in "bad faith" or with some "improper motive." See Garrett, 238 F.3d at 299. Where nondisclosure is merely "the result of an unintentional mistake," the absence of bad faith militates against the imposition of a harsh sanction. See id. Substantial evidence was presented at the Sanctions Hearing to demonstrate that Agent Ortiz intentionally contrived to suppress the Hallway Video. Namely, the evidence shows that there were material discrepancies between Defendant's preservation request and the description of that request that Ortiz sent to CBP, that Ortiz's repeated processing delays were unjustified, and that Ortiz had a motive to prevent Defendant from obtaining the Hallway Video.
a. Material discrepancies between Defendant's request and Ortiz's description of that request
First, there are discrepancies between the request sent by Defense counsel to the prosecution and the letter sent by Agent Ortiz to CBP describing Defendant's request. On October 4, 2021, Defense counsel requested that the Government preserve all evidence related to the case, generally. Sanctions Hr'g Def. Ex. 2, at 1, ECF No. 64. In the same letter, Defendant also made a more particular request:
(a) That the Government, including this Office and agents and agencies involved in this arrest, preserve all video and audio recordings of devices capturing the presence of [Defendant and the passengers in her vehicle], at the port of entry and also at the entrance of her detention cell at the bridge (that will show who went in and out and the length of time during the duration of her detention at the bridge) and any and all interviews of [Defendant or her passengers] in conjunction with and subsequent to their arrest on September 26, 2021.Id. (emphasis added).
The prosecutor sent this request to Agent Ortiz, who, in turn, passed it on to CBP, the agency that possessed the video. When Agent Ortiz transmitted the request to CBP, he included a cover letter, stating:
Pursuant to a federal criminal investigation, Homeland Security Investigations (HSI) El Paso Office officially requests a copy of the Customs and Border Protection (CBP) Office of Field Operations (OFO) owned video captured at the Paso Del Norte Port of Entry on September 26, 2021.
. . .Sanctions Hr'g Def. Ex. 4, at 3, ECF No. 64. Then, following a paragraph with Agent Ortiz's contact information, the letter continued:
HSI Special Agent David Ortiz is requesting video of the vehicle at the Paso Del Norte Port of Entry in primary on September 26, 2021, from 1325 hrs. to 1340 hrs. Also provide any vehicle secondary inspection area video from 1330 hrs. to 1400 hrs. [Description of Defendant and her vehicle].
Also, of note, attached is a request for video/audio from the Federal Public Defenders Office. In that request the Federal Public Defenders Office is requesting any available video/audio of said subject's physical presence in any room or location after apprehension.Id.
Agent Ortiz's cover letter thus highlighted Defendant's request for videos of the vehicle at the port of entry. But it elided any reference to Defendant's particularized request for video taken "at the entrance of her detention cell at the bridge (that will show who went in and out and the length of time during the duration of her detention at the bridge)." Compare id., with Sanctions Hr'g Def. Ex. 2, at 1. The reference to any video of "said subject's physical presence in any room or location after apprehension," does not capture Defendant's request for video of other people coming and going from the door to her cell. See Sanctions Hr'g Def. Ex. 4, at 3 (emphasis added). The CBP officer processing the request would have to turn to the attachment of Defense counsel's original letter to find the request for the Hallway Video. See id.
According to the testimony of Rosie Villanueva, CBP Operations Specialist, Defendant's request for the Hallway Video was unusual. Sanctions Hr'g Tr. Pt. 2, at 98:17-22. Rather than flagging for CBP that Defendant had made an uncommon request, Ortiz obfuscated it. It is plausible that Ortiz, who has extensive experience processing such requests, Sanctions Hr'g Tr. Pt. 1, at 40:3-22, did so intentionally, hoping that the request for the Hallway Video would be overlooked. See Sanctions Hr'g Tr. Pt. 2, at 98:21-22 (Villanueva testimony) ("The group that burns the video may have just burned status quo without thinking about it further.").
To be sure, the troubling discrepancies between Defendant's request and Ortiz's description of it could merely be the result of neglect or sloppiness, rather than intentional misconduct. On its own, Ortiz's reframing of the discovery request would not be sufficient to establish bad faith. But in combination with the other evidence, the Court finds it more likely than not that Ortiz intentionally omitted the request for the Hallway Video from his cover letter to CBP.
b. Ortiz's unjustified delays
i. Ortiz repeatedly delayed processing Defendant's request, knowing the Hallway Video faced imminent destruction.
As further evidence of bad faith, Ortiz repeatedly delayed his efforts to obtain or preserve the Hallway Video, all the while knowing that it would be subject to routine destruction after ninety days. The prosecution transmitted Defendant's discovery request to Agent Ortiz on the day it was received, October 4, 2021. Sanctions Hr'g Def. Ex. 1, ECF No. 64. But it took Agent Ortiz thirty-seven days, until November 10, 2021, to pass that request on to CBP. Sanctions Hr'g Def. Ex. 4. Then, due to an oversight at CBP, the request was not timely processed. Sanctions Hr'g Tr. Pt. 2, at 99:11-24. After a series of follow-ups from Defendant and the prosecution, on December 2, 2021, Agent Ortiz finally re-sent the request to CBP, this time to Villanueva. Sanctions Hr'g Def. Exs. 3, 6, ECF No. 64; Sanctions Hr'g Gov. Ex. 1, ECF No. 71. On December 7, 2021, Villanueva sent Ortiz an email, informing him that the responsive videos were ready for pickup. Sanctions Hr'g Gov. Ex. 1.
The Government was thus on notice that action was required to preserve the Hallway Video, almost three months before it was set to be overwritten. In other cases, the Fifth Circuit has found no bad faith when routine evidence destruction policies were applied as a matter of course, with no indication that the defendant had timely requested preservation. See, e.g., United States v. Moore, 452 F.3d 382, 388-89 & n.26 (5th Cir. 2006). That Defendant made a prompt and highly particularized preservation request for the Hallway Video makes its subsequent destruction far more suspect than the routine destruction in Moore.
Agent Ortiz admitted he was aware that at that time, the ninety-day video retention period was "coming up," and time was of the essence to review the videos before they were deleted. Sanctions Hr'g Tr. Pt. 2, at 26:9-24. Yet he waited another week, until December 14, before picking up the file from Villanueva. Id. at 24:3-10; 30:15-17; Sanctions Hr'g Def. Ex. 7, ECF No. 64. Furthermore, Villanueva testified that while she could not specifically recall whether she informed Ortiz, it is her "standard spiel" to tell agents about the ninety-day retention policy when they pick up videos, and that "this one was already right on the edge" when Ortiz finally arrived. Id. at 95:8-16.
Nevertheless, Ortiz did "[n]ot immediately" review the videos provided by Villanueva. Sanctions Hr'g Tr. Pt. 1, at 61:9-11. On December 25, 2021, the ninety days elapsed, and the September 26 Hallway Video was overwritten. Sanctions Hr'g Tr. Pt. 2, at 26:14-16, 79:6-12, 95:23. Ortiz could not recall exactly how long he waited—one week, two weeks, three weeks—to review the videos, but he testified that by the time he reviewed them, saw that there was no Hallway Video, and reached out to CBP, the ninety-day deadline had come and gone. Sanctions Hr'g Tr. Pt. 1, at 61:9-62:19; Sanctions Hr'g Def. Ex. 8, ECF No. 64.
In sum, Agent Ortiz bottlenecked the video preservation process on at least three occasions. He waited thirty-seven days to forward the initial request to CBP. Then, he waited a full week to pick up the videos, even though he knew that the ninety days were about to elapse. And finally, when he picked up the videos, he either did not review them to check for the Hallway Video or did not inquire about the absence of the Hallway Video until after the ninety-day window had closed.
ii. Ortiz's explanations for his delays are unconvincing.
Ortiz's explanations for these delays are unconvincing. As the finder of fact for purposes of the Sanctions Hearing, it is the Court's role "to analyze the credibility and weight of witness testimony." United States v. Morris, 40 F.4th 323, 329 (5th Cir. 2022) (citing United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005)). Agent Ortiz's testimony regarding the reasons for his delay lacked credibility, for several reasons. First, his explanations were vague and shifting. He testified that he did not check the video quickly because he "trusted CBP." Id. at 27:10. He also testified that, generally, "other operational duties" sometimes led him to have a "little delay" in processing discovery requests. See id. at 29:11. But there was no assertion that other duties had waylaid him in this case, much less any explanation of what those other duties were. Indeed, Ortiz never offered any concrete reason for either the initial thirty-seven-day delay or the one-week delay in picking up the videos. As for the delay in reviewing the videos, he offered only his trust in CBP's ability to process the request correctly. Id. at 27:10. But it strains credulity to suppose that Ortiz would, in good faith, allow the ninety-day preservation deadline to expire, without doing a quick check to make sure that the unusual request for the Hallway Video had been fulfilled—especially when Ortiz omitted any specific mention of the Hallway Video from his cover letter to CBP, describing Defendant's request.
On top of these vague, inconsistent and incredible explanations, Ortiz also vacillated in his own assessment of his performance. When questioned by the Government, he contritely admitted he could perhaps have done a few things a bit better. Id. at 27:9-13. Then when questioned by Defense counsel, he shifted to asserting that he had acted within "best practices," only to abruptly and incongruously deny that he would ordinarily delay as long as he did in this case:
Ortiz testified that, in retrospect, he "would have [passed the request on to CBP] earlier than five weeks" after receiving Defense counsel's request. Id. at 27:11-13. He also testified that he "would view the videos as soon as I got them." Id. at 27:9.
Q: Waiting five weeks for a request to preserve evidence, you don't consider that sloppy?Id. at 28:25-30:20. Ortiz appeared bent on providing agreeable answers to the Government and combative denials to the Defense, rather than truthful responses to either. This detracts greatly from his credibility.
A: No, because I had ninety days.
Q: Business as usual?
A: Yes, sir.
Q: It is always what you do?
A: Always what I do.
Q: You wait and wait and [sic] like in this case?
A: No, I don't wait.
Q: You request them, right, when they ask you to?
A: There is cases [sic] that I have and other cases there is a little delay because of other operational duties I have to take care of.
. . .
Q: I believe it was December 7 that you received communication with Rosie Villanueva telling you that the videos that you requested were ready?
A: Yes.
Q: Nevertheless knowing that you are almost out of time, it took a whole week to go and pick them up?
A: Yes.
Q: You considered that the best practice of HSI investigations right?
A: Yes.
Ortiz's candor, demeanor, and responsiveness also undermine his credibility. See United States v. Giacomel, 153 F.3d 257, 258 (5th Cir. 1998) (noting that "demeanor is a critical factor" in assessing credibility). His answers to the Government's questions about what he would do differently had a stilted, rehearsed quality, especially when contrasted with his self-justifying outbursts at Defense counsel. Indeed, Ortiz was consistently reticent and evasive throughout the hearing when questioned by the Defense. See, e.g., Sanctions Hr'g Tr. Pt. 1, at 46:20-49:9 (refusing to acknowledge that he was changing his testimony from the preliminary detention hearing about his knowledge that there were cameras in the hallway). Certainly, there are plausible explanations for Ortiz's demeanor that would not reflect poorly on his credibility. But taken in the context of his at turns vague, inconsistent, and inherently implausible testimony, the Court finds his demeanor corroborates an adverse credibility determination. And Ortiz's lack of a credible explanation for his repeated, protracted, and knowing delays is strong evidence that he acted in bad faith to suppress the Hallway Video.
iii. Ortiz's unjustified delays warrant an inference of bad faith despite the involvement of multiple federal agencies.
One possible alternative explanation for the delays is that the chain of communication between the prosecution, HSI, and CBP simply broke down. That would make this case like United States v. McNealy, 625 F.3d 858 (5th Cir. 2010), a Brady case, in which the Fifth Circuit held that a computer "destroyed as a result of miscommunication between divisions of the federal government" was not destroyed in bad faith. Id. at 870. Facially, there are parallels between this case and McNealy—both involve multiple federal agencies coordinating on an investigation, and a breakdown in communication leading to the destruction of potentially exculpatory evidence. See id. at 869.
But the parallels stop at the reasons for that breakdown. In McNealy, "[t]he Government was at least negligent in destroying McNealy's computer," but "there [was] no evidence that they intended to destroy the evidence in order to impede McNealy's defense." See id. at 869-70. Indeed, they made a forensic image of the hard drive before the computer was destroyed and gave a copy to the defendant. Id. at 869. That the Government made a copy before destroying the computer suggested that the Government was not intentionally preventing the defendant from accessing the information on the computer. See id. Here, by contrast, no copy of the Hallway Video was made before it was destroyed. And, as discussed throughout this section, there is ample evidence that Ortiz's repeated delays were intentional, not just that his message got lost in the interagency shuffle. Thus, unlike McNealy, there is evidence that Ortiz intentionally worked to destroy the evidence in bad faith.
c. Ortiz's motive
Also unlike McNealy, there is evidence here that Ortiz had a motive to intentionally obstruct Defendant from accessing the Hallway Video. A Government official's "improper motive" is relevant to assessing the reasons for non-disclosure. See United States v. Michalik, 5 F.4th 583, 591 (5th Cir. 2021) (citing United States v. Ortiz, 213 F. App'x 312, 315 (5th Cir. 2007) (per curiam)). According to Defendant, Ortiz interrogated her alone before she waived her Miranda rights. Ortiz allegedly came in and out of her cell multiple times over the course of forty minutes, while yelling at her and threatening to file charges against her adult daughter or call Child Protective Services ("CPS") to "take [her] son . . . if [she] did not take responsibility" for the drugs in her vehicle. Def. Sworn Statement ¶¶ 4-6, ECF No. 59.
During the Preliminary Detention Hearing on October 1, Defense counsel questioned Ortiz about these allegations:
Q: How many times did you meet with my client?
. . .
Q: You went one time to the interview room to introduce yourself, correct?
A: Her cell room to introduce myself.
Q: How long did that take you?
A: Maybe [inaudible] minutes, ten minutes.
Q: Ten minutes?
A: Five or ten minutes [inaudible].
. . .
Q: Are there capabilities to record in front of the cell?Detention Hr'g Tr. 9:25-12:20.
. . .
A: I don't know.
. . .
Q: Agent Ortiz, did you at any time threaten my client to put her daughter in jail and her child in CPS custody if she didn't admit to committing this offense?
A: No, sir.
Ortiz received Defendant's request for the Hallway Video three days later, on October 4. From the language of that request and the questioning at the Preliminary Detention Hearing, Ortiz would likely have been able to deduce that Defendant wanted the Hallway Video to show the extent to which Ortiz spoke to Defendant while she was in her cell. If Defendant's allegations were untrue, Ortiz could reasonably be expected to prioritize obtaining the Hallway Video to vindicate himself and protect the integrity of his investigation. But if Defendant's allegations were true, Ortiz would have a motive to suppress the Hallway Video, which, if it were exposed, could possibly subject him to personal embarrassment and professional discipline, and result in the exclusion of key evidence in this case.
Of course, it is also possible that Ortiz failed to understand the significance of the questions asked during the Preliminary Detention Hearing, failed to properly review Defendant's October 4 request, or both. But considering the discussion at the Detention Hearing and the contents of Defendant's request, in the context of Ortiz's subsequent actions, the Court finds it more likely than not that Ortiz acted with a motive to prevent the Hallway Video from coming to light. Because the Court finds that Ortiz acted in bad faith, the first factor weighs heavily in favor of sanctions. See Garrett, 238 F.3d at 299.
2. The amount of prejudice to Defendant
The second factor is whether and to what extent Defendant has been prejudiced by the discovery violation. Id. Prejudice exists where the defendant's right to a fair trial is impeded. See id. (collecting cases). This ordinarily requires "that the lack of information created a reasonable probability that the result [at trial] would [be] different." Id. at 299-300 (citing Kyles, 514 U.S. at 419, 115 S.Ct. 1555). Therefore, withholding merely cumulative evidence is not considered prejudicial. Id. at 300 (citing United States v. Lowder, 148 F.3d 548, 551 (5th Cir. 1998); Allridge v. Scott, 41 F.3d 213, 217-18 (5th Cir. 1994)). In the closely-associated Brady context, which also requires a showing that the outcome at trial could have been different but-for the failure to disclose evidence, courts consider "whether nondisclosure affected the outcome of [a] suppression hearing," as a proxy for trial, when appropriate. See Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992).
See, e.g., United States v. Beasley, 576 F.2d 626, 631 n.6 (5th Cir. 1978) (referencing Rule 16 authority in support of Brady analysis because the two doctrines are "informed by [some of] the same considerations").
In order to assess whether the Hallway Video could reasonably be expected to affect the outcome of a suppression hearing, some background on Miranda waivers and involuntary confessions is necessary. Arrestees subject to custodial interrogations must be informed of certain rights, including their right against self-incrimination. United States v. Coulter, 41 F.4th 451, 456-57 (5th Cir. 2022). That right can be waived, but "the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Hopkins v. Cockrell, 325 F.3d 579, 584 (5th Cir. 2003) (quoting Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); see also United States v. Restrepo, 994 F.2d 173, 184 (5th Cir. 1993) ("Promises or inducements can taint the voluntariness of a confession.") (citing United States v. McClure, 786 F.2d 1286, 1289 (5th Cir. 1986)).
Defendant argues that she has been prejudiced by the withholding and destruction of the Hallway Video because it would support suppressing her confession. Mot. 5. The video would show whether, as Defendant alleges in her Sworn Statement, Ortiz came and went from her detention cell several times, questioning, threatening, and screaming at her, before she waived her Miranda rights. See Def. Sworn Statement ¶¶ 4-6. In short, the video would either corroborate or refute Defendant's assertion that she was subjected to a coercive interrogation that vitiated her subsequent Miranda waiver. See Moran, 475 U.S. at 421, 106 S.Ct. 1135.
i. Whether the Hallway Video ever existed
As a preliminary matter, there was some testimony that the Hallway Video may never have existed, in which case, of course, there would be no prejudice. But Villanueva explained this was nothing more than speculation. See Sanctions Hr'g Tr. Pt. 2, at 97:16-18 ("[T]here might not have been video but . . . there is no way for me to know."); id. at 99:1-4 ("[T]he cameras may have been down that day or the recorder may have been down that day. Without one of us asking, I am making a supposition at this point."). There was no testimony to indicate how often camera outages occur, much less any specific assertion that the particular camera that would have recorded the Hallway Video was not functioning on the day in question. There is no basis in the record on which to doubt that the Hallway Video was captured and existed in CBP's files until it was overwritten on December 25, 2021.
And it is also clear that the Hallway Video would show the door to Defendant's cell, and that a viewer of the video would be able to see whether Agent Ortiz came and went from the cell multiple times, as well as how long he stayed there speaking with Defendant. Id. at 96:13-97:20 (referencing Sanctions Hr'g Gov. Ex. 6, ECF No. 63 (still photograph from the perspective of the camera that captured the Hallway Video)). Thus, the Hallway Video would have shed some important light on Defendant's allegations.
ii. Defendant's statement and Ortiz's testimony
Even so, the Government argues that the Hallway Video could not possibly have corroborated those allegations. Specifically, the Government argues that the Court should not credit Plaintiff's written statement about the alleged pre-Miranda interrogation over Ortiz's in-person testimony, which was subject to cross-examination and provided the ephemeral indicia of credibility that a sworn statement cannot offer. Gov. Supp. Br. 5-6. Certainly, courts have given "little weight" to affidavits that are controverted by credible live testimony. See, e.g., United States v. Carmouche, 18 F. Supp. 3d 838, 843 n.2 (S.D. Tex. 2014). But courts have approached defendants' assertions of their right not to take the stand during pre-trial criminal hearings differently, when the other evidence supports, rather than contradicts, their position. See, e.g., United States v. Portillo-Saravia, 379 F. Supp. 3d 600, 607, 620 (S.D. Tex. 2019) (granting motion to suppress although "Defendants did not testify or call witnesses. Instead, they cross-examined the officers" and presented other evidence); United States v. Heard, No. 15-84-JJB-RLB, 2016 WL 447491, at *2-3 (M.D. La. Feb. 4, 2016) (similar); United States v. Radford, 106 F. Supp. 2d 944, 945, 954-56 (E.D. Mich. 2000) (granting motion to suppress where the defendant did not testify at the suppression hearing, and where other evidence gave the court a "strong suspicion of blatant police misconduct").
So the Government's argument could be persuasive, but only if there were ample, credible testimony to controvert Defendant's affidavit. The Court does not disregard Defendant's Sworn Statement simply because it is written, nor reflexively accept Ortiz's testimony just because it was spoken in the courtroom. The Court gives each the weight to which they are entitled, in light of their intrinsic credibility and all the other evidence. See, e.g., Portillo-Saravia, 379 F. Supp. 3d at 607, 620.
As to Agent Ortiz's testimony on the issue of prejudice, he denied that he interrogated and threatened Defendant prior to the Mirandized interview. Sanctions Hr'g Tr. Pt. 1, at 49:10-18. But, for the reasons discussed above, Ortiz's testimony generally lacked credibility. His specific testimony on the extent to which he spoke to Defendant in her cell before she was read her Miranda rights was also unworthy of credence. During the Detention Hearing, Ortiz testified that he "initially looked in the cell room to introduce [him]self" before later conducting a Mirandized interview of Defendant. Detention Hr'g Tr. 10:10-11. When asked how long it took to introduce himself, Ortiz stated, "maybe [inaudible] minutes, ten minutes," and then "five or ten minutes." Id. at 10:17-20. At the Sanctions Hearing, Defense counsel revisited this testimony with Ortiz:
Q: You I believe had indicated you entered the cell just to introduce yourself?Sanctions Hr'g Tr. Pt. 1, at 46:1-19.
A: Yes.
Q: Basically the introduction is hey, my name is Agent Ortiz and I am going to be talking to you later on?
A: Yes.
Q: Was there any more you can remember about that introduction?
A: There is nothing else.
Q: I remember asking you at the preliminary and [sic] detention hearing how long were you there. You first said that you were like ten minutes and you changed it to five to ten minutes?
A: Could have been less.
Q: Because in what I just asked you, it probably took a quarter of a minute, right?
A: Like what?
Q: Quarter of a minute?
A: A minute, two minutes, three minutes. I don't know. I didn't time myself.
Throughout this exchange, Ortiz exhibited a tense, hostile demeanor, which reflected poorly upon his credibility. More importantly, it is impossible to reconcile Ortiz's account of the limited nature of the interaction—an "introduction" in which fewer than twenty words were spoken—with his original account of the time it took—five to ten minutes. Only when Ortiz appeared to recognize this incongruity did he walk back his time estimate to between one and three minutes. But even one minute is too long to say what Ortiz purports to have said. Either he said much more to Defendant than he admitted, or it took much less time than he said it did.
Even giving Ortiz the benefit of the doubt that the initial five- or ten-minute estimate was the result of some innocent overestimation, it is deeply damaging to his credibility that he persisted so obstinately. Ortiz refused to concede the obvious incongruity in his own testimony, instead of simply acknowledging that he was mistaken and clarifying that it only took him a few seconds. The Court was thus left with a strong impression that Ortiz did much more than simply introduce himself to Defendant, and that his original discordant time estimate was not the product of an innocent mistake, but of concocting a false number under pressure during the Detention Hearing.
The evidence also indicates that Ortiz would have had time to do more than just say hello. Ortiz testified that he arrived at the Port of Entry before his HSI partner, with whom he was to conduct the Mirandized interview. Id. at 45:7-17. More precisely, Ortiz said it "could be yes" that he arrived thirty to forty minutes before that partner. Id. at 45:16-17. So Ortiz's own testimony suggests that he may have had an opportunity to interrogate Defendant for forty minutes, as Defendant avers in her Sworn Statement.
iii. The Log Sheet
And that time period also tracks with the CBP welfare check log sheet, Sanctions Hr'g Def. Ex. 10 ("Log Sheet"), ECF No. 72. The Log Sheet shows a series of brief, time-stamped notes, made by CBP Agent Iglesias, who was charged with conducting welfare checks on Defendant during her time in custody at the Port of Entry on September 26. Sanctions Hr'g Tr. Pt. 2, at 36:14-39:14. The Log Sheet indicates that "subject is being interviewed by HSI" from approximately 4:50 p.m. to approximately 5:48 p.m, and then again from approximately 6:25 p.m. to approximately 7:37 p.m. Sanctions Hr'g Def. Ex. 10. The timestamps for the second HSI interview period match the timestamps for the recorded, Mirandized interrogation of Defendant by Agent Ortiz and his partner. Sanctions Hr'g Tr. Pt. 2, at 10:21-11:3. And the timestamps for the first HSI interview period roughly align with Defendant's allegation that she was interrogated and threatened by Ortiz, alone, for about forty minutes, prior to that Mirandized interrogation. See Def. Sworn Statement ¶¶ 4, 7.
Agents Ortiz and Iglesias offered another explanation for the significance of the Log Sheet. They asserted that "subject being interviewed by HSI" does not necessarily mean what it says. Iglesias testified that he writes "subject being interviewed by HSI" whenever he observes that a detainee is not in their cell. Sanctions Hr'g Tr. Pt. 2, at 40:18-41:11. Iglesias testified that he writes this because he assumes that if the detainee is not in their cell, they must be getting interviewed by HSI in the interview room. Id. at 41:2-3, 45:22-23, 58:2-4. But Iglesias also acknowledged that there are other reasons that a detainee might not be in their cell—for instance, they could be taken out to a different building to get fingerprinted. Id. at 42:1-5; see also id. at 53:13-54:5. The computer system does not require Iglesias to choose from a list of options but permits him to enter whatever text is appropriate. Id. at 53:3-12, 57:4-5. Even so, Iglesias insisted that he would still write "subject is being interviewed by HSI" whenever he noticed a detainee was not in their cell. See, e.g., id. at 54:9-12.
Iglesias appeared to testify inconsistently about whether HSI agents inform the CBP desk agents when they take detainees out of the building. Compare id. at 42:24-43:2 ("Q: If they were to take her out of the headhouse, they would let you know correct? A: Not the majority of the time. They just do their own thing."), with id. at 43:5-7 ("If [HSI] were to take them out of the headhouse, it would mean they were actually taking custody of them which at that point I would annotate it in my log."). It is unclear whether Iglesias' nebulous characterization of his notes on the Log Sheet is untrue or merely reflective of a loosely structured recordkeeping policy for welfare checks, that gives great deference to HSI. See id. at 49:6-13 (Iglesias testifying that if a detainee is with HSI he assumes they are safe).
Even taking Iglesias' testimony as true, the most reasonable interpretation of the Log Sheet is still consistent with Defendant's account that she was interrogated by Ortiz at her detention cell. The Government's alternative—that Defendant was being fingerprinted in another building during the first period marked "subject is being interviewed by HSI"—does not withstand scrutiny. Iglesias did not specifically recall whether, in this case, anyone had taken Defendant out of the building before she was transferred out of CBP custody. Id. at 42:6-8, 54:6-8. And Agent Ortiz testified during the Detention Hearing that Defendant was not fingerprinted until after her Mirandized interview—not beforehand. See Detention Hr'g Tr. 10:2-4. So while there is testimony that "subject is being interviewed by HSI," on some log sheets, could sometimes indicate that the detainee is being fingerprinted in another building, the evidence does not suggest that was the case here.
The Government also appeared to suggest, through its elicitation of testimony by Iglesias, other possible interpretations of "subject is being interviewed by HSI," such as that Defendant was being interviewed by CBP to obtain biographical information about her children. See Sanctions Hr'g Tr. Pt. 2, at 50:3-51:11. But there is even less evidence to support these other possibilities. Iglesias only testified, generally, that such interviews sometimes took place. See id. He did not testify that he remembered any such CBP interview of Defendant taking place, let alone during the first time period annotated with "subject is being interviewed by HSI."
The more likely reading of the Log Sheet corroborates Defendant's Sworn Statement. Iglesias testified that, hypothetically, if he had gone to do the welfare check and seen an HSI agent standing in the hall with the door to a cell open, speaking to a detainee, he would ask whether the HSI agent was taking the detainee for an interview. Id. at 60:12-15. If the HSI agent answered yes, he would write "subject is being interviewed by HSI." Id. Considering this testimony, together with Iglesias' other testimony about the latitude he gives HSI officers over detainees, it is reasonably probable that the annotations that "subject is being interviewed by HSI" from approximately 4:50 p.m. to approximately 5:48 p.m. signified that Iglesias went to check on Defendant and saw that Ortiz was speaking to her at her cell. See id.; Sanctions Hr'g Def. Ex. 10. Thus, the Court finds that the Log Sheet likely means what it says, and that Ortiz had a protracted interaction with Defendant before her Mirandized interview with Ortiz and his partner.
iv. Reasonable probability of prejudice
The Government argues that Defendant's Sworn Statement and the Log Sheet together constitute "pretty puny evidence" on which to find that Ortiz wrongly coerced Defendant's confession. Sanctions Hr'g Tr. Pt. 2, at 111:7-24; see also Gov. Supp. Br. 6-7, 9-10. But Defendant has not filed a motion to suppress her confession under the Fifth Amendment, so she need not prove she was coerced into giving an inculpatory statement in violation of her constitutional rights. Defendant has filed a Motion for Sanctions. When considering whether she has demonstrated prejudice under the Rule 16 sanctions standard, Defendant need only demonstrate a "reasonable probability" that the wrongly withheld evidence—the destroyed Hallway Video—could lead to a different result if she were to file a motion to suppress the confession. See Garrett, 238 F.3d at 299-300.
In one sense, the Government is correct. Defendant's Sworn Statement, together with the Log Sheet, and the testimony of Ortiz and Iglesias, is likely insufficient, without more, for Defendant to prevail on a motion to suppress. But that only serves to illustrate the prejudice. For the reasons stated above, there is a reasonable probability that the Hallway Video would have shown Ortiz spending an extended period of time speaking to Defendant before she was taken for her Mirandized interview. And that, in combination with the other evidence adduced at the Sanctions Hearing, would likely warrant granting a motion to suppress Defendant's confession, on the grounds that she only relinquished her right to be free from self-incrimination because of Ortiz's intimidation and coercion. See Moran, 475 U.S. at 421, 106 S.Ct. 1135.
For the same reason, the Hallway Video was not merely cumulative evidence. See Garrett, 238 F.3d at 300. The Log Sheet is prone to multiple reasonable interpretations based on Iglesias' testimony. Thus, it does not resolve the conflict between Defendant and Ortiz's competing versions of events. But the Hallway Video would put the matter to rest.
Since there is a reasonable probability that the Hallway Video would have made a difference on a motion to suppress, there is also a reasonable probability that it would have affected the outcome at trial. A defendant's "own confession is probably the most probative and damaging evidence that [could] be admitted against [her]." Pyles v. Johnson, 136 F.3d 986, 996 (5th Cir. 1998) (first alteration in original) (quoting Bruton v. United States, 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Such a statement "is powerful evidence of guilt, the admission or exclusion of which would be highly likely to affect the outcome of [a] trial," United States v. Avants, 278 F.3d 510, 522 (5th Cir. 2002), even if the government has other evidence that could support a conviction, see United States v. McGrew, 397 F. App'x 87, 94 (5th Cir. 2010) (per curiam). Thus, because the Hallway Video could have made all the difference to Defendant's ability to vindicate her Fifth Amendment right against self-incrimination, the second factor weighs in favor of sanctions. See Garrett, 238 F.3d at 299-300; Smith, 904 F.2d at 965-66.
To put it in the language of the Brady standard, the Hallway Video was at least "potentially useful" evidence. See Bower v. Quarterman, 497 F.3d 459, 476 (5th Cir. 2007) (citing Illinois v. Fisher, 540 U.S. 544, 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004)). And as the Court found in the preceding Section, the Hallway Video was withheld in bad faith. Under Brady, withholding potentially useful evidence in bad faith amounts to a due process violation. Id. This point is merely for illustrative purposes, and to engage with the parties' use of similar language in their briefing. As stated previously, Brady confers a trial right, and the Court does not reach the issue of whether a Brady violation has been established here. See Alvarez, 904 F.3d at 392.
3. The feasibility of curing prejudice with a continuance of the trial
When the prejudice occasioned by the Government's discovery violation can be cured with a continuance of the trial date, such a continuance is ordinarily the appropriate remedy, in lieu of other sanctions. See, e.g., Swenson, 894 F.3d at 685-86 (vacating district court's sanction dismissing indictment where "a continuance would have remedied any prejudice"); Garrett, 238 F.3d 293, 300-01 (similar); United States v. Sarcinelli, 667 F.2d 5, 6-7 (5th Cir. Unit B 1982) (similar). But a continuance cannot cure prejudice occasioned by the unavailability of evidence that has not just been wrongly withheld, but permanently destroyed.
This point is perhaps so obvious that the Court is not aware of a decision in which it has been stated in so many words. However, the Supreme Court has made a similar observation in the context of a post-trial motion:
[F]ashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing . . . the State's most probative evidence.California v. Trombetta, 467 U.S. 479, 486-87, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
The Hallway Video was overwritten and irrevocably lost on December 25, 2021. See Sanctions Hr'g Tr. Pt. 2., at 83:1-7. There is no evidence that any length of continuance would provide an opportunity to recover it. See id. Because a continuance cannot obviate the prejudice here, this factor weighs in favor of granting sanctions that could—even if they are somewhat harsher.
4. Any other relevant circumstances
Finally, Courts consider any other circumstances relevant to the question of whether sanctions are appropriate. Swenson, 894 F.3d at 684. Defendant urges the Court to consider the need to disincentivize wrongdoing. See Def. Supp. Br. 7. "[D]eterring future misconduct" is among the additional considerations that may be relevant to adjudicating a Rule 16 sanctions motion. See United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016). In Dvorin, "the individual who was responsible for the discovery violation [ ] was no longer involved in the case at the time the district court was considering the propriety of awarding sanctions." Id. Therefore, the Fifth Circuit found that "the concern of deterring future misconduct was less significant than it might have been otherwise." Id.
Here, by contrast, Ortiz—the agent most responsible for the discovery violation—would likely be a key witness if this case were to go forward without sanctions. As discussed, the Court finds it likely that Ortiz engaged in willful misconduct. Sanctions are thus warranted, not only to cure the prejudice to Defendant, but also to deter Ortiz and others from committing similar misconduct in future cases. Cf. Ross v. Texas, 474 F.2d 1150, 1154 (5th Cir. 1973) (listing deterrence of prosecutorial misconduct among the reasons for which Brady violations warrant new trials).
Because all four factors weigh in favor of Defendant, sanctions are warranted.
5. Appropriate remedy
Defendant seeks three sanctions, in the alternative: (1) dismissal of the indictment with prejudice, (2) suppression of any statements Defendant made while in custody on September 26, 2021, and (3) the opportunity to introduce evidence of spoliation, accompanied by a spoliation instruction, at trial. Mot. 1. The Government argues that dismissal and suppression are inappropriate, and that the request for a spoliation instruction is premature. See Resp. 9. To determine the appropriate sanction, the Court is guided by the principle that it must impose the least severe sanction necessary to remedy the prejudice caused by the discovery violation. See Swenson, 894 F.3d at 684. As previously discussed, the mildest available sanction, continuing the trial date, would be ineffective, because the Hallway Video has been irretrievably lost.
Suppression of Defendant's confession and introduction of spoliation evidence with an instruction are each less severe sanctions than dismissal, so the Court considers them next. See United States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988) ("A district court exceeds the proper bounds of its power to order dismissal of an indictment with prejudice when it fails to consider whether less extreme sanctions might maintain the integrity of the court without punishing the United States for [one individual's] misconduct.").
The Fifth Circuit treats suppression of evidence and the issuance of spoliation instructions similarly—both ordinarily require a showing of bad faith. Compare United States v. Valas, 822 F.3d 228, 239 (5th Cir. 2016) (citing United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000)) ("To receive a spoliation jury instruction, the party seeking the instruction must demonstrate bad faith or bad conduct by the other party."), with Michalik, 5 F.4th at 591 ("[W]here a party did not act with 'an improper motive, it is rare to sanction a party in a method as draconian as suppressing the evidence.' " (quoting Ortiz, 213 F. App'x at 315)), and Dvorin, 817 F.3d at 438 (citing Garrett, 238 F.3d at 299) ("Generally, a district court will not impose severe sanctions, like suppression of evidence, where the government's discovery violations were not committed in bad faith."). Here, the Court has found that Ortiz acted in bad faith, thus satisfying this predicate requirement for sanctions in the form of suppression of the confession or spoliation instructions.
And at first blush, both sanctions appear to dovetail neatly with the discovery violation at hand. Because the wrongly destroyed evidence would have had a reasonable probability of supporting the suppression of Defendant's confession, sanctions should be narrowly tailored to precluding or limiting the jury's consideration of that confession. See Swenson, 894 F.3d at 684. But the Court has grave concerns about the voluntariness of Defendant's confession. And allowing a jury to hear that confession, even accompanied by evidence of Ortiz's misconduct and a spoliation instruction, would still pose a serious danger of prejudicing Defendant. Indeed, it may even violate Defendant's constitutional rights. See Jackson v. Denno, 378 U.S. 368, 391 & n.19, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
Procedures by which "the convicting jury" hears a possibly coerced confession and determines its voluntariness are unconstitutional. Id. "[W]hen the evidence clearly reflects a question of the voluntariness of a confession, the trial court must raise the issue on its own motion" prior to trial, regardless of whether the defendant has done so. See United States v. Guanespen-Portillo, 514 F.3d 393, 401 (5th Cir. 2008). In holding that the issue of voluntariness must be resolved separately from the ultimate question of criminal liability, the Supreme Court explained:
[The possibility] that the jury found the confession involuntary and disregarded it [before convicting the defendant]—is equally unacceptable. Under the [unconstitutional] New York procedure, the fact of a defendant's confession is solidly implanted in the jury's mind, for it has not only heard the confession, but it has been instructed to consider and judge its voluntariness and is in position to assess whether it is true or false. If it finds the confession involuntary, does the jury—
indeed, can it—then disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt actually result in acquittal when the jury knows the defendant has given a truthful confession?Jackson, 378 U.S. at 388 & n.15, 84 S.Ct. 1774 (collecting cases and other authorities).
These concerns are relevant to the Court's choice of sanction. Introducing evidence of spoliation with an instruction, while meant to cure the prejudice to Defendant, may in fact compound that prejudice by making her confession even more salient in the minds of the jurors. See id. Because one cannot unring the bell of Defendant's confession, introducing evidence of spoliation, together with an adverse inference instruction, is an inadequate remedy. Instead, suppressing the statements made by Defendant while in custody on September 26, as well as any testimony about those statements, is the appropriate sanction in this case. Excluding such evidence is the least harsh means of ensuring that Defendant is not prejudiced by the bad-faith destruction of the Hallway Video.
During the first day of the Sanctions Hearing, the Government appeared to concede that suppressing Defendant's custodial statements would be an appropriate outcome, if a violation were established:
At its core, my response is well, what can we do to make the Defense whole in light of the nonproduction of this video. In my estimation to make them whole would be to kick the confession, kick the statement . . . . [the video's] primary purpose would be to support or disprove this allegation she was intimidated or interviewed pre-Miranda in an unconstitutional way. What would be the appropriate remedy? Kick the confession and I would argue that the defense to some extent is made whole.See Sanctions Hr'g Tr. Pt. 1, at 33:1-13. The Government later argued vigorously against any sanction, including suppressing the confession. See, e.g., Sanctions Hr'g Tr. Pt. 2, at 108:25-109:1 ("I am asking you to deny the three prongs they are asking for; suppression, dismissal, and spoliation.").
The Court also finds that precluding Agent Ortiz from offering any testimony at trial is warranted as an additional sanction. This sanction is necessary both as a punitive response to Agent Ortiz's bad faith misconduct, and also because if Agent Ortiz were to testify, it would raise serious constitutional concerns. Defendant would have a Sixth Amendment right to an "opportunity for effective cross-examination" of Ortiz, to impeach his credibility. See United States v. Skelton, 514 F.3d 433, 439 (5th Cir. 2008) (emphasis omitted) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). But an effective cross-examination would likely require opening the door to evidence of Defendant's confession. The Court will not punish Defendant for Ortiz's misconduct with this Hobson's choice.
The Fifth Circuit has approved of individual sanctions against Government actors who commit discovery violations in criminal cases, as a means of coercing future obedience. See, e.g., Sarcinelli, 667 F.2d at 6.
Finally, more severe sanctions—including dismissal with prejudice as requested by Defendant—are not warranted. Ortiz's actions here may well approach the sort of "extraordinary" situation required "to impose the extreme sanction of dismissal of an indictment." See United States v. Fulmer, 722 F.2d 1192, 1195 (5th Cir. 1983). Regardless, when less severe sanctions are available and effective, the Court must impose them, instead. See Swenson, 894 F.3d at 684. The absence of the Hallway Video only impugns the validity of Defendant's confession—it does not undermine the reliability of other evidence in this case, such as any physical evidence seized from the vehicle she was driving. And the only person shown to have engaged in intentional misconduct is Agent Ortiz. Because the prejudice is circumscribed to Defendant's confession, only that confession—and any evidence thereof—need be suppressed. And because only Ortiz acted in bad faith, only he must be barred from testifying entirely. As these less severe sanctions suffice, dismissal with prejudice is unwarranted. See Welborn, 849 F.2d at 985.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Sanctions, ECF No. 31, is GRANTED IN PART and DENIED IN PART. The Motion is DENIED as to Defendant's request for dismissal of the indictment, as well as Defendant's request to introduce evidence of spoliation, together with a spoliation instruction, at trial. The Motion is GRANTED in all other respects, and the Court SANCTIONS the Government as follows:
• Any statements made by Defendant while in Government custody on September 26, 2021, as well as any testimony or evidence of such statements, are SUPPRESSED, EXCLUDED and SHALL NOT be admissible at trial; and
• Homeland Security Investigations Special Agent David Ortiz is PRECLUDED from testifying and SHALL NOT testify at trial in this case.
SO ORDERED.