Estrada Reply to Response

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA,

Plaintiff,

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

Defendant.

REPLY IN SUPPORT OF MOTION OF JAMIE ESTRADA TO COMPEL PRODUCTION OF EMAILS THAT AGENT MICHAEL BOADY HAS TESTIFIED

THAT GOVERNOR MARTINEZ AND HER STAFF SENT TO CONTACTS REGARDING USE OF THE DOMAINS SUSANA2010.COM AND SUSANAPAC.COM

Contrary to the claims in the governments response (Doc. 41), nothing the government

has produced renders moot Jamie Estradas motion to compel production of emails that Agent

Boady testified that Governor Susana Martinez and her staff sent to their contacts regarding the

use of the domains susana2010.com and susanapac.com (Doc. 37). The government states that it

does not currently have any responsive documents other than those it has already produced.

(Doc. 41 at 1.) But the documents that the government has producedincluding those it has

specifically identified as responsive to Estradas motionare not emails that the Martinez

campaign sent to all of their contacts regarding susana2010.com and susanapac.com. From these

facts it is reasonable to infer that, contrary to Boadys testimony, in May of 2013 the government

did not have the emails that are the subject of Estradas motion. However, by stating only that it

does not currently have any other responsive emails, the government leaves open the

possibility that it had the emails that are the subject of Estradas motion in May of 2013, when

Boady so testified, but that the government no longer has them. Only the governments

representation that it never had any such emails would render the motion moot. Absent such a

representation, Estrada respectfully submits that an evidentiary hearing will be necessary to

Case 1:13-cr-01877-WJ Document 43 Filed 04/07/14 Page 1 of 9

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determine if the government had the emails in May of 2013 and if so, what happened to those

emails between May of 2013 and the present.

I. The motion is not moot because the government has not produced any of the emails that Boady testified the government had in its possession in May of 2013.

The government still has not produced any of the emails that Boady testified that the

government had in its possession in May of 2013, although the statements in the governments

response suggest otherwise. In his motion, Estrada asked the Court to order the government to

produce all emails that Governor Martinez, her staff, and her agents sent to their contacts

informing them that they were no longer using the domain susana2010.com for email and other

purposes and that they were using susanapac.com or some other domain and/or requesting that

their contacts begin sending email to any domain other than susana2010.com. (Doc. 37 at 1, 5.)

In May of 2013, Boady testified under oath before a grand jury that the government had the

emails that are the subject of Estradas motion: as soon as [Martinez and her staff] realized they

were unable to renew the domain, they they provided us emails showing that they sent an email

to all of their contacts, saying we are no longer using Susana2010, but now we are using another

domain. (Doc. 37-1, Exhibit A, Boady grand jury testimony, May 29, 2013, at 12 (emphasis

added).) In its response to Estradas motion, the government implies that it produced some of the

emails that Estradas motion seeks before Estrada moved to compel and that it has produced

additional responsive emails since Estrada filed his motion. The government refers Estrada to

documents JM_0020, JM_00500053, FBI_0000300007 and FBI_0597305975. (Doc. 41 at

1.) The government states that this list includes three additional pages of responsive material the

United States received subsequent to the filing of Estradas Motion, which the United States has

voluntarily produced to Estrada. (Id.) Based on these representations, the government asks the

Court to deny Estradas motion as moot.

But Estradas motion is not moot because the documents the government identified as


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responsive are, in fact, not responsive. The government has not produced any of the emails that

are the subject of Estradas motion. Estrada still does not have any of the emails that Boady

testified that the government had in May of 2013 and that are indisputably material to the

defense. The government identified four sets of documents that it claims are responsive to the

motion to compel production of the emails sent to Martinez contacts regarding the supposed

switch from susana2010.com to susanapac.com:

1. JM_0020. This is an email that Scott Morris, a Martinez campaign information

technology consultant, sent to Jay McCleskey on July 19, 2011, informing him that

susanapac.com email accounts were operational. (Exhibit C.1) The purpose of the email was to

notify McCleskey that people who had their own susansa2010.com email accounts could begin

using susanapac.com email addresses. McCleskey is the only addressee. No other person is

listed in the to line or the cc line. This documentwhich the government produced months

before Estrada filed his motion to compelis not an email that was sent to the Martinez

campaigns contacts regarding the need to begin using susanapac.com email accounts.

2. JM_00500053 is a July 19, 2011, email exchange involving GoDaddy and

McCleskey, which McCleskey forwarded to Morris. (Exhibit D.) McCleskey asked GoDaddy to

return the domain susana2010.com to Martinez campaign. McCleskey claimed Martinez

campaign owned susana2010.com. But GoDaddy disagreed, rejecting McCleskeys request.

McCleskey then forwarded his exchange with GoDaddy to Hiss with the message Not going

well. Again, this documentwhich the government produced months before Estrada filed his

motion to compeldoes not include any emails that the Martinez campaign sent to contacts

regarding the need to begin using susanapac.com email accounts.

1 To avoid confusion between the exhibits to Estradas motion and the exhibits to his reply, counsel for Estrada resume exhibit lettering in the reply where counsel left off in the motion. The motion had Exhibit A and Exhibit B. Accordingly, the first exhibit to this reply is Exhibit C.


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3. FBI_0000300007 is an FBI 302 report, which the government produced before

Estrada moved to compel, summarizing a July 2, 2012 interview of McCleskey. (Exhibit E.) It

is difficult to imagine how the government could think that this FBI report is responsive to

Estradas motion, which seeks the emails about which Boady testified. The document is, of

course, not an email.

4. The final documents that the government identifies as responsive to Estradas motion

bear control numbers FBI_0597305975 and are attached as Exhibit F. The documents are email

exchanges dated July 19 and 20, 2011. McCleskey forwarded Morris email described above

(Exhibit C) to Martinez, her campaign staff, and others who the defense believes had their own

susana2010.com email accounts because of their involvement with the campaign. McCleskey

wrote that he believed Estrada had control over the susana2010.com domain. (Exhibit F.) He

directed various people working on behalf of the campaign to begin using their newly-created

susanapac.com email accounts. These are the three pages of documents that the government

represents that it received after Estrada moved to compel.2 (Doc. 41 at 1.) In other words, the

government did not have the emails in Exhibit F in May of 2013, when Boady testified.

The governments response appears to amount to a concession that Boady testified falsely

to the grand jury that the government had the emails in May of 2013, but the government leaves

open the possibility that the government had such emails in May of 2013 but no longer has them.

Contrary to Boadys grand jury testimony, it appears likely that, in May of 2013, the government

did not have any emails that Martinez and her staff sent to their contacts about the need to use

susanapac.com email addresses. Of the four documents that the government has identified as

responsive, the three documents that the government actually possessed when Boady testified do

not include any email sent to any Martinez campaign contact about using susanapac.com email

2 The government produced these documents on March 21, 2014, two weeks after Estrada moved to compel.


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accounts. The government has acknowledged that it obtained the emails in the fourth document,

Exhibit F, after Estrada filed his motion on March 7, 2014. (Exhibit F.) The government adds

that it currently possesses no additional documents responsive to Estradas request, broadly

construed. (Doc. 41 at 1 (emphasis added).)

But it is impossible to determine from the governments response whether the

government, in May of 2013, actually possessed or controlled the emails that Boady described

under oath to the grand jury at that time. The governments response to Estradas motion,

coupled with Boadys testimony, suggests that in May of 2013 the government might have had

emails that the Martinez campaign sent to all of its contacts, but that the government lost or

destroyed those emails sometime after Boady testified. The government has stated only that it

does not currently have the emails about which Boady testified. (Doc. 41 at 1.) But the

government still has not explicitly stated that it did not have the subject emails in its possession

in May of 2013, when Boady testified under oath that the government did have the subject

emails. The motion will be moot only if government counsel makes such a representation to the

Court.

If, however, the government is unwilling or unable to make such a representation, Estrada

respectfully submits that an evidentiary hearing will be necessary to determine (1) whether the

emails that Boady testified were in the governments possession or control in May of 2013 were

truly in the governments possession or control at that time and (2) if so, what happened to the

emails between May of 2013 and the present. The answers to these questions will allow the

Court to determine whether any destruction of or failure to preserve the subject emails was in

bad faith and therefore a potential violation of Estradas due process rights, Arizona v.

Youngblood, 488 U.S. 51 (1988), or in good faith and in accord with [the FBIs] normal

practice, California v. Trombetta, 467 U.S. 479, 488 (1984) (quoting Killian v. United States,


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368 U.S. 231, 242 (1961)). Unless the government represents to the Court that it never had the

emails about which Boady testified, the only way to answer these questions is for the Court to

take testimony from Boady and any other FBI agents who were responsible for collecting and

retaining copies of the subject emails, as well as any other peeople who know how and when the

government obtained the subject emails.

II. The Courts standing discovery order prohibits the approach the government has taken to the discovery issue in Estradas motion. The government has chosen not to engage in the discovery process that this Court orders

parties to engage in in every criminal case. The governments failure to comply with the Courts

standing discovery order has unnecessarily complicated the discovery issue that is currently

before the Court. This has caused the Court and counsel to waste time litigating an issue that

probably could have been resolved far more efficiently through direct and frank communication

between counsel.

Estradas counsel specifically requested that the government produce the emails that are

the subject of his motion. (Doc. 37-1, Exhibit B.) The government responded only that it had

complied with and would continue to comply with its discovery obligations. Now, in its

response to Estradas motion, the government asserts that it has no obligation to answer specific

requests for production in criminal matters[.]3 (Doc. 41 at 1.) The government is wrong. The

government ignores the Courts discovery order (Doc. 7), the purpose of which is to streamline

the discovery process and minimize unnecessary efforts of the Court personnel and counsel[.]

(Doc. 7 at 1.) To that end, paragraph 8 provides:

If a party contends that the opposing party has not provided the material required to be produced by this Order, that party may petition this Court for its disclosure only after a specific request for production has been denied by the opposing party.

3 The government also states that it has no obligation to answer interrogatories with references to specific documents. (Doc. 41 at 1.) This is odd. Estrada has never propounded interrogatories.


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However, the Court will deny any such petition unless the party seeking production complies with the following requirements: A. Identifies with specificity the evidence required to be disclosed and the paragraph of this Order authorizing its production; and B. Identifies the Assistant U.S. Attorney or the individual defense counsel to whom a specific request for disclosure was made, the date such disclosure was denied and the proffered reason for denial. Such petitions shall be filed by the motions deadline as set by the Magistrate at arraignment; however, a petition shall not be refused as untimely where the opposing party has previously declined production on the grounds of present unavailability of the evidence or where the applicable law does not require production until after the motions deadline.

(Id. 8 (emphases added.) Paragraph 8 requires counsel to engage in a three-step process to

avoid unnecessary discovery litigation.

Step one is for a party to make a specific discovery request. Estrada did so, fulfilling his

obligation under the Courts order.

Step two is for the party to whom the request was made to either produce the requested

information or provide a reason for denial of the request (such as prematurity, lack of

responsive material, or beyond the scope of discovery). This allows the parties to determine if

there is actually a dispute that requires motion practice. Unfortunately, the government refused

to complete step two. In response to a request from Estradas counsel for the emails about which

Boady testified, the government only stated, we have complied and continue to comply with our

disclosure obligations. (Doc. 37-1, Exhibit B.) Estradas counsel then explained to the

government that providing a specific response to his request might obviate the need for motion

practice. (Id.) The government did not respond. The governments extremely vague statement

of its positionthat it has complied and will continue to comply with its discovery

obligationsprevented Estradas counsel from knowing whether (1) the government had the

subject emails but believed they were not within the scope of discovery; (2) the government had

the subject emails but believed Estradas request was premature (perhaps under the governments


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view of when Brady and Jencks materials should be produced in this case); (3) the government

had the subject emails at some point before Boady testified but no longer had possession or

control of those emails at the time of Estradas request; (4) the government believed it had

already produced the requested emails or (5) the government never had the subject emails. Had

the government stated its position specifically, as the Courts discovery order requires, it might

not have been necessary for Estrada to move to compel. Perhaps counsel could have resolved

this issue in a few minutes in an informal manner, rather than wasting hours of the Courts time

and counsels time. Unfortunately, the government chose instead to provoke what very well may

prove to be needless discovery litigation, including possibly even an evidentiary hearing.

Step three is a discovery motion. The Courts discovery order contemplates that a party

will only file a discovery motion after the first two steps are complete. A meaningful response to

a specific discovery request is supposed to precede every discovery motion. By refusing to

comply with the Courts order, the government forced Estradas counsel to move to compel to

protect Estradas rights.

CONCLUSION

Absent a representation from the government that it has never possessed or had control

over the emails about which Boady testified, the Court should set an evidentiary hearing to

determine if the government ever had those emails and if so, what happened to them.

Respectfully submitted,

/s/ Zachary A. Ives Zachary A. Ives [email protected] Molly Schmidt Nowara [email protected] GARCIA IVES NOWARA 201 Third Street NW, Suite 480 Albuquerque, NM 87102 phone 505.899.1030


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CERTIFICATE OF SERVICE

I hereby certify that on April 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/ Zachary A. Ives Zachary A. Ives


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