IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) Criminal No. 13-1877 WJ ) JAMIE ESTRADA, ) ) Defendant. )

UNITED STATES’ RESPONSE TO DEFENDANT JAMIE ESTRADA’S MOTION TO COMPEL DISCOVERY AND SET BRIEFING SCHEDULE (Doc. 36)

This Court should deny Defendant Jamie Estrada’s Motion to Compel Discovery and Set

Briefing Schedule for Disputes Regarding Brady and Jencks Disclosures (Doc. 36). Defendant

Estrada has presented no valid basis under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v.

United States, 405 U.S. 150 (1972), Federal Rule of Criminal Procedure 16, or the Jencks Act,

18 U.S.C. § 3500, for seeking this Court to order the United States to produce to him the items

he is demanding. Nor has Defendant Estrada provided any valid basis for seeking this Court to

compel the United States to furnish information about its witnesses months in advance of trial.

General Overview and Background

Defendant Jamie Estrada begins his motion to compel with the sweeping proclamation

that this case is not about the charges in the indictment but is “really about the enormous political

and personal consequences of the public exposure of certain emails for some of the most

powerful and influential people in our state, including Governor Susana Martinez.” Doc. 36 at 1.

From that starting point, Defendant Estrada reasons that this means, among other things, that the

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United States is “required by law” to “reveal[] the true motives of Martinez and those in her

inner circle in pressing for Estrada’s prosecution[.]” Id. at 2.

In fact, the sole issue that the jury will be required to decide at trial is whether, under

federal law, Defendant Estrada is guilty of illegally intercepting the emails he is specifically

charged with illegally intercepting, and of making the four false statements he is specifically

charged with having made to agents of the Federal Bureau of Investigation (“FBI”). It will not

be the jury’s job to put anyone else, including the victim, on trial. Nor, notwithstanding

Defendant Estrada’s apparent plans to the contrary, would it be proper for Defendant Estrada to

try to transform his trial from a trial about the charges in the indictment – and the straightforward

elements therein – to a sideshow of political grandstanding and mudslinging in an effort to

inflame, distract or confuse the jury about his factual guilt or innocence. See, e.g., United States

v. Gonzales, 596 F.3d 1228, 1237 (10th Cir. 2010) (stating that “we disapprove of the

encouragement of jury nullification”).

The wholly misplaced context that Estrada proffers to this Court for evaluating his

suggestion that alleged evidence exists to support his innocence to the charges against him draws

heavily upon newspaper accounts about rumors of improprieties over the awarding of a contract

to operate the racino at the Albuquerque Downs. E.g., Doc. 36 at 8. In fact, the United States

knows of no disclosed – or undisclosed – evidence that shows that Defendant Estrada is

somehow innocent of the charges that have been brought against him. Tellingly, Defendant

Estrada is deafeningly silent about his own conduct in relation to the actual charges in the

indictment. Instead, Defendant Estrada seems to obsess over the idea that Governor Martinez

must have reported his crimes to federal authorities in order to divert attention from alleged

racino improprieties and to make him her “chosen scapegoat.” Id. at 9. But it is a non sequitur

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for Defendant Estrada to suggest that anything about the alleged racino affair is even remotely

exculpatory as to his own criminal conduct.1

A sensible framework or context for evaluating claims about alleged exculpatory

evidence should bear some direct and logical relation to evidence that is actually relevant to the

charges brought in the indictment, together with the elements of those crimes that will have to be

proven – not news reports about others’ activities that have no bearing upon whether Defendant

Estrada illegally intercepted emails and then lied about doing it to the FBI. For example, to

prove Defendant Estrada guilty of violations of the charges in Counts 1 through 12 of the

indictment, the United States will need only to prove that Defendant Estrada intentionally

intercepted, or procured another person to intercept, an electronic communication using an

electronic, mechanical or other device. 18 U.S.C. § 2511(1)(a) and 18 U.S.C. § 2510(4). To

prove him guilty of Counts 13 through 16 of the indictment, the United States will only need to

show that Defendant Estrada made materially false or fictitious statements or representations

about a matter within the jurisdiction of the FBI when he spoke to FBI agents on September 19,

2012. 18 U.S.C. § 1001(a)(2).

The indictment itself also describes the general context of how Defendant Estrada is

alleged to have committed the crimes charged. A very brief overview of the crimes which

Defendant Estrada is charged with committing underscores just how completely unconnected the

items Defendant is seeking to obtain are from any genuine or germane question about his guilt or

innocence. The indictment, for example, describes how during the summer of 2009, Susana

Martinez began to prepare a campaign to run for Governor of New Mexico. Doc. 23 at 1. In

1 Indeed, if during the Watergate era, an illegal wiretap had picked up some political “dirt” on the opposition party, nothing about that “dirt” would have legitimized the illegal eavesdropping or magically transformed it into some sort of lawful enterprise.

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doing so, in July 2009, the campaign acquired an internet domain designated as

www.susana2010.com (the “Domain”) from GoDaddy.com (“GoDaddy”). Id. This allowed the

campaign to set up a website and establish email addresses for then-candidate Martinez and

staffers corresponding to that internet address. Id. at 1-2. The Domain was registered for a

period of two one-year terms. Id. A username and password were required in order to renew the

Domain at the end of a registration period. Id.

Defendant Estrada joined the Martinez campaign as campaign manager in about July

2009. Id. at 2. As campaign manager, Defendant Estrada was provided with the username and

password for the Domain. Id. Defendant Estrada left the campaign in December 2009.2 Id.

When he left the campaign, Defendant Estrada was told to return all information belonging to the

campaign, including any usernames and passwords. Id.

After Martinez became Governor in January 2011, she and some members of her staff

continued to use the email addresses associated with the Domain for certain communications. Id.

at 3. On July 18 and 19, 2011, staffers began receiving reports of emails sent to addresses on the

Domain bouncing back to the sender. Id. They discovered that the Domain had expired. Id.

2 In his motion to compel, Defendant Estrada is clearly very interested in debating the finer points of whether he was actually dismissed from the campaign or left voluntarily. Doc. 36 at 5-6. Thus, he cites exchanges he had after leaving the campaign to suggest that, in statements to the press, Governor Martinez both wrongly characterized the circumstances of his departure from her campaign, and her own perceptions of his character. Id. Yet whatever Defendant Estrada may have to say or feel about whether the Governor really wanted him to leave her campaign, or what he thinks she really thought about his character, Defendant Estrada cannot dispute the content of an email he sent to Governor Martinez’s political advisor just days before he left the campaign. In that December 23, 2009, email, Defendant Estrada warned: “I can’t understand how she wouldn’t think there are political consequences for treating me poorly or unfairly.” Discovery at JM_0086. In any event, regardless of how cordial Defendant Estrada asserts his parting with the Governor really was, it is difficult to fathom how the alleged cordiality of their relationship when and after he left the campaign provides any valid grounds for this Court to compel the United States to produce to him any of the specific items he is now seeking.

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They immediately began efforts to try to renew the Domain with GoDaddy. Id. But staffers

could not recall the username or password for the Domain. Id. Consequently, there was an

effort to contact Defendant Estrada to see whether he would provide the password and username.

Id. Defendant Estrada did not provide the password or username. Id.

Instead, on a post on his Facebook page dated July 20, 2011, Defendant Estrada wrote:

“Beware the snakes who stab you in the back, and then call you out of thin air, all because they

apparently want something from you.” Doc. 36-3 at 3.3 Another former campaign staffer

responded to Defendant Estrada by writing, “Lack of knowledge and disorganization on their

part, does not constitute an emergency on your part.” Id.

Meanwhile, on July 19, 2011, the Governor’s staff switched to a new domain, believing

that the old Domain was expired and was no longer being used. Id. at 2. GoDaddy, however,

permits the registrant of a domain a 42-day grace period after expiration to have an exclusive

right of renewal. Doc. 23 at 1-2. It was during that time frame, on July 29, 2011, that Defendant

Estrada is charged with logging onto GoDaddy and using the username and password to renew

the Domain. Id. at 3. In his motion, Defendant Estrada postulates that there will be little

“physical evidence” presented at trial. Doc. 36 at 11. In fact, many records will be presented at

trial, including records showing that at the same time that the Domain was renewed, settings for

the Domain were also changed as they related to the handling of incoming messages. Id. at 3-4.

Incoming emails were redirected from the email server the Martinez campaign had authorized to

receive them to an email account that Defendant Estrada controlled. Id.

3 In a news article that Defendant Estrada attaches to his motion, the reporter also quotes a November 2010 email from Defendant Estrada to the Governor’s political advisor, Jay McCleskey, that apparently related to an effort by Defendant Estrada to obtain a job in the Martinez administration. Doc. 36-3 at 7. In his email, Defendant Estrada reportedly characterized himself as being on the administration’s “enemies list.” Id.

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Records will also be presented showing that when he renewed the Domain, Defendant

Estrada tried to cover his tracks. For example, a pre-paid debit card was used to pay for renewal

of the Domain. The customer profile controlling the Domain was altered to contain the alias

“Sylvia Tacori” at the email address of sylviatacori@gmail.com. Databases show that no person

residing in the United States has the name “Sylvia Tacori.” However, records will be presented

at trial establishing that an IP address used to log into the Domain traced back to Defendant

Estrada’s cell phone.

After illegally acquiring the emails, Defendant Estrada culled through the emails he had

stolen and leaked selected emails that he apparently believed might be damaging or politically

embarrassing to the Governor.4 A go-between or conduit used for the release of intercepted

emails was Independent Source PAC (ISPAC), a liberal political action committee run by

political opposition researcher Michael Corwin. Doc. 36-3 at 8.

Governor Martinez became aware that the Domain had been compromised in June 2012,

after ISPAC published one of the intercepted emails on its website and a Santa Fe newspaper ran

a story on the email. Id. at 2. Shortly thereafter, on June 29, 2012, the Governor’s office

reported to the press that they had asked the FBI to investigate the interception of the emails.

4 Defendant Estrada states that in order to convict him the jury “would have to believe that he did not have lawful access to the Domain.” Doc. 36 at 11. This suggests that he may somehow try to claim that he had a lawful right to spy on other people by reading emails that neither the senders or recipients ever intended for him to receive, or even knew that he had. Both common sense and the surrounding circumstances clearly establish that Defendant Estrada was not an intended party to the emails he intercepted. Indeed, while Defendant Estrada seeks to disparage or casually wave aside the privacy rights of the individuals he violated, Doc. 36 at 11 and 24, the defense fails to explain why Defendant Estrada believed he was entitled to snoop through Governor Martinez’s very private emails about the underwear she wears, which is the subject of Count 8 of the indictment, or why he somehow thought it was fair game for him to intercept private emails about another staffer’s bank balance, as charged in Count 6.

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See Exhibit 1, Barry Massey, Gov. Martinez Alleges Hacking of Campaign Email, Albuquerque

Journal, June 29, 2012.

Agents interviewed Defendant Estrada about their investigation on or about September

19, 2012. During the interview, Defendant Estrada denied ever logging onto the GoDaddy

account for the Domain. As charged in Count 14 of the indictment, he also falsely stated that he

was not aware of the sylviatacori@gmail.com email account.

As stated above, the United States is aware of no evidence in this case that casts

legitimate doubt upon the issue of Defendant Estrada’s guilt. The United States is unfortunately

all too familiar, however, with the tactic used by some defendants who lack a credible or

persuasive defense as to the facts or the law, and who therefore resort instead to making all sorts

of reckless accusations, including baseless insinuations about the integrity of government agents.

See, e.g., Doc. 36 at 23 (surmising that the case agent must have “perjured” himself at the grand

jury).

The United States also understands its obligations to provide Giglio information with

respect to the witnesses it actually calls to testify at trial. United States v. Presser, 844 F.2d

1275, 1281 (6th Cir. 1988) (“[T]he government typically is the sole judge of what evidence in its

possession is subject to disclosure. If it fails to comply adequately with a discovery order

requiring it to disclose Brady material, it acts at its own peril.”) The United States is not

obligated to provide any Giglio information about individuals it does not call as witnesses. In

this case, there can be different ways to prove certain facts, and the United States may rely upon

a myriad of records and individuals to establish its proof at trial. Moreover, merely because an

individual may eventually be listed on a witness list does not mean that the government will be

forbidden from later changing its mind about calling that witness, or substituting another witness

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or document in that person’s place. As in any trial, such trial decisions are generally made much

closer in time to the actual trial date, when the trial attorneys have made more definite decisions

about their trial tactics and strategy. The United States fully intends to timely provide any Giglio

information it may obtain about its witnesses within the time limits provided under the law.

Based on the arguments he has made in his motion, Defendant Estrada simply has not presented

any valid or compelling reasons for the Court to radically alter those timelines and order the

United States to turn over any material to him several months in advance of the time the United

States would otherwise be required to turn over such material. Nor has Defendant Estrada

provided any legitimate reason as to why this Court should grant him a new deadline for filing

motions now that the motions deadline has passed.

In fact, Defendant Estrada has already been provided access to a trove of information

which vastly exceeds the discovery to which he is entitled under the Constitution, statutes and

the Federal Rules of Criminal Procedure, and even includes two of the documents that are

attached to his motion. See Docs. 36-3 and 36-6. It also includes terabytes of electronic

information, dozens of agent reports, and even several grand jury transcripts which the rules did

not require the United States to turn over to him. He simply has no legitimate grounds for

complaining that the government has withheld any information to which he is currently entitled.

It appears that Defendant Estrada believes that the United States is required simply to

turn over all files in its possession to him. But contrary to Defendant Estrada’s apparent

viewpoint, the law simply does not require the prosecution to turn over all its files, or to make a

complete and detailed accounting of all police work that was done. United States v. Agurs, 427

U.S. 97, 109 (1976); Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (stating that there is “no

general constitutional right to discovery in a criminal case”); United States v. Bagley, 473 U.S.

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667, 675 (1985) (“[T]he prosecutor is not required to deliver his entire file to defense

counsel[.]”).

Defendant Estrada’s Specific Demands

A. The alleged Albuquerque Downs or racino affair

In part IV(A) of his motion, Defendant Estrada requests that the United States be ordered

to provide him with what he hypothesizes is an established fact: “[i]nformation regarding the

pending criminal investigation into the racino pay-to-play scheme.” Doc. 36 at 21. Defendant

Estrada then itemizes the specific material he contends should be produced with respect to the

racino. He first argues that the United States be ordered to produce documents or information

“suggesting that the public statements” made to the press by Governor Martinez, and her

political advisor, Jay McCleskey, either denying the existence of, or disclaiming knowledge of, a

federal investigation regarding the lease for the Albuquerque Downs racino “are not true.” Id.

He also argues that the United States should be compelled to produce “all documents regarding

possible illegal or improper conduct by Governor Martinez, Pat Rogers, Jay McCleskey, or

others in connection with the award of the lease for the Albuquerque Downs racino in 2011.” Id.

He hypothesizes that “the suspected corruption surrounding the racino contract is the subject of

open state and federal criminal investigations.” Id. at 7. He further claims that obtaining the

specific items described above is somehow essential to the preparation of his defense. Id.5

Defendant Estrada has not established any legitimate grounds to have the United States

provide him access to any of the items he speculates may exist in part IV(A) of his motion.

5 Earlier in his motion, Defendant Estrada contends that it “is also reasonable to infer” that Governor Martinez “may be attempting to curry favor with the government in the hopes of obtaining a favorable outcome in the racino investigation.” Id. at 8. In describing this imaginary scenario, Defendant Estrada fails to explain how Governor Martinez’s reporting of Defendant Estrada’s crimes could possibly “curry favor” with federal authorities working on other alleged investigations.

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Indeed, with respect to Defendant Estrada’s claims about alleged public statements that either

Governor Martinez or Mr. McCleskey may have made to the press about their understanding of

whether any investigations regarding the racino were pending, Defendant Estrada has not even

identified the specific comments to which he is referring. It should hardly be incumbent upon

the United States to have to sift through media reports to try to find whatever statements to

which Defendant Estrada may be referring on unrelated racino matters, and then have to sift

through its own files to try to find information rebutting those statements.6 As far as

undersigned counsel are aware, any public statements to which Defendant Estrada may be

referring may simply have been made in response to press reports, and were presumably based

upon whatever the person uttering them may have believed at the time.

Defendant Estrada is obviously well aware that Mr. Corwin of ISPAC gave emails that

Defendant Estrada had illegally intercepted to the New Mexico Attorney General’s Office

(NMAGO), hoping to fuel a state investigation into alleged procurement improprieties at the

Downs. Doc. 36-2 at 5. The United States has turned over to Defendant Estrada materials

6 The United States is aware of at least one statement a spokesman for the Governor apparently made to the press that appeared in a June 4, 2013, newspaper article in which it was reported that a Republican fundraiser had been questioned by the FBI about the Downs racino contract. A copy of that article is attached hereto as Exhibit 2. In response to reports about the FBI questioning people about the Downs, the Governor’s spokesman apparently said the following:

Gov. Susana Martinez administration insiders have said that asking questions about the Downs would have been a normal part of the FBI investigation in the emails theft case. Martinez spokesman Enrique Knell said, “As a prosecutor for over 25 years, the governor knows criminals always try to blame the victim. Looking into their allegations, no matter how ridiculous, is standard procedure and good due-diligence in preparation for trial.”

Exhibit 2, Mike Gallagher, Fundraiser for GOP talked to FBI agents about Downs deal, Albuquerque Journal, June 4, 2013.

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relating to that referral, together with the pertinent emails. The attorneys and investigators at the

NMAGO are the state’s experts in evaluating claims about state actors allegedly engaging in

state procurement fraud or irregularities, and they had the expertise, background and know-how

to evaluate any allegations that ISPAC presented to them. As Defendant Estrada also knows, the

NMAGO has never brought any charges to substantiate such allegations. Moreover, while

Defendant Estrada contends that the state has an “open” investigation into the allegations that

ISPAC presented to the NMAGO, Doc. 36 at 7, he has no actual proof of this.

By asserting that there are open state and federal investigations into the Downs, with

“subjects” and “targets,” id. at 22, Defendant Estrada seeks to lend credence to future allegations

about the racino he hopes to make as the centerpiece of his desired strategy of throwing a

figurative smoke bomb into the courtroom at trial to try to confuse the issues and divert the

jury’s attention away from his own charged conduct. Of course, the mere fact that investigators

may look into any issue in any prosecution does not make that issue either more or less credible.

More importantly, Defendant Estrada has presented nothing that would entitle him to receive any

official response or confirmation one way or the other about whether FBI agents may have

interviewed anyone, or what they may have said, with respect to any matter that is unrelated to

Defendant Estrada’s own case. In a sense, the underlying “standing” argument that Defendant

Estrada seems to be relying upon to suggest that he is entitled to such an accounting – but which

he leaves unstated – perversely appears to be rooted in the fact that emails he illegally

intercepted were part of Mr. Corwin’s referral to the NMAGO.

In his motion, Defendant Estrada also frames his last request in part IV(A) regarding the

racino as a request for the United States to be compelled to provide him with documents

concerning “possible” illegal or “improper” conduct concerning three individuals, including

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individuals whom the United States may, or may not, choose to call as witnesses at his upcoming

trial. Doc. 36 at 21. Under Brady, however, the United States is not required to produce

documentation about “possible,” or speculative, or unsubstantiated information. Agurs, 427 U.S.

at 109 n.16 (1976) (holding that the government has no obligation under Brady to communicate

“preliminary, challenged, or speculative information” (citation omitted)).

In fact, many news articles that Defendant Estrada has attached to his motion are actually

helpful insofar as they illustrate the political circus into which this case could quickly degenerate

if Defendant Estrada was permitted to pursue the defense strategy he has announced. Indeed, the

eight-page article attached as Doc. 36-6 displays the myriad accusations and counter-accusations,

and the politics surrounding them, that permitting evidence about the racino deal would

presumably engender at trial. For example, the article quotes both the Governor as stating that

the State got a better deal than it did under the prior administration’s no-bid lease, and a

“Democratic state official knowledgeable about the bid” as stating that the racino deal had “no

substantive problems” and that the real problem with it was one of “political optics.” Doc. 36-6

at 4. Meanwhile, the Governor’s opponents have questioned why the bid process allowed only

30 days for submission of proposals on a complex deal, id. at 6, noting that the Governor

received large contributions from people connected to the winning bidders, id. at 4, while

supporters of the deal point out that the process complied with state procurement laws, id. at 6,

and was never even required to be put to bid. Id. at 5. The convoluted twists and turns of the

above dispute, which would undoubtedly entail testimony about the complexities of the state

procurement system, the contract review process, the work required to be performed under the

request for proposals, and the qualifications and bid details of the two competing bidders – all

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seasoned with a heavy dash of political bashing – are wholly unconnected to the charges against

Defendant Estrada.

As suggested above, while Defendant Estrada intones that “[t]he government’s case rises

and falls on the testimony . . . of witnesses who have powerful motives to ensure that Estrada is

convicted,” rather than on “physical evidence,” Doc. 36 at 11, he fails to connect his aspersions

to any legitimate or legally permissible defense to the charges. Again, figuratively speaking, a

person could email a confession to having kidnaped the Lindbergh baby – and the person who

illegally intercepted that communication would still be guilty of a violation of 18 U.S.C. § 2511.

Even a criminal act exposed through a violation of the Wiretap Act would neither excuse nor

justify the interception. Defendant Estrada’s request that the United States provide him with

documents relating to “possible” illegal or “improper” conduct regarding the racino contract, of

course, falls even shorter of the mark, but his motion nonetheless is apparently a preview of the

types of distractions unrelated to his crimes that he evidently wishes to present at trial.

In fact, Defendant Estrada’s motion urges a notion of relevance so sweeping that it would

make every political criticism of Governor Martinez material to his defense. That is because

under the logic of Defendant Estrada’s theory of the case, he should be able to show that

Governor Martinez is desperate to deflect any criticism of her onto him, thereby creating a

supposed basis for presenting almost any criticism of her at trial.

In conjunction with his theme of distraction, another of the ideas sounded in Defendant

Estrada’s motion is his description of Governor Martinez’s “efforts to indict” him, Doc. 36 at 7,

or “motivation in prosecuting” him. Id. at 20. He is, of course, not laboring under the false idea

that the victim of his crimes is prosecuting him. Rather, his phrasing appears to be part of a

broader overall strategy of trying to insinuate that the indictment against him is somehow

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illegitimate. It is the United States Attorney, of course, who is prosecuting Defendant Estrada.

While a victim of a crime has certain rights, the decisions of whether or not to prosecute, which

charges to pursue and the manner of resolution of a criminal case rest exclusively with the

United States Attorney. Governor Martinez has no control over that process, and any insinuation

to the contrary is false. Moreover, a victim’s reasons or motive in reporting a crime speaks for

itself, but in any event such reasons have no bearing upon Defendant Estrada’s arguments as to

his alleged innocence. Beyond that, Defendant Estrada’s repeated references to the victim’s

“efforts in prosecuting” this matter are nonsensical and cannot support a theory of admissibility

of material unrelated to the elements and defenses applicable to the instant charges.

B. Demands for the release of grand jury testimony

In part IV(B) of his motion, Defendant Estrada requests this Court to compel the United

States to provide him with transcripts of grand jury testimony that was presented when the

indictment was superseded in October 30, 2013. He notes that the United States previously

provided him with a transcript of FBI Special Agent Michael Boady’s grand jury testimony in

connection with the first indictment. Defendant Estrada “surmises” that the reason the United

States has not honored his request to provide him with the requested transcript is because it “does

not want to expose its case agent as having either perjured himself at the grand jury or having

botched the investigation so badly that the government was forced to correct its error with a

superseding indictment.” Doc. 36 at 23. As with all the other requests in his motion, Defendant

Estrada also wants the material he is requesting to be produced far in advance of when he may be

entitled to it under the rules, as he anticipates the disclosures will trigger him to file even more

motions to compel once he receives them. Id. at 26.

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A court may permit disclosure of grand jury materials under Federal Rule of Criminal

Procedure 6(e)(3)(E)(i) only when the requesting party has demonstrated a “particularized need”

for the material. The particularized need standard was defined in Douglas Oil v. Petrol Stops

Northwest, 441 U.S. 211, 217-23 (1979). Under the standard, the movant must demonstrate that

the material sought is:

[N]eeded to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed . . . . [Moreover], in considering the effects of disclosure of grand jury proceedings, the courts must also consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries.

Id. at 222. The Supreme Court has not provided a precise definition of “particularized need.” In

general, courts have focused on how the sought-after materials will be used. For example,

disclosure may be permitted when it is sought for use in refreshing the recollection, impeaching,

or testing the credibility of witnesses at trial. See United States v. Proctor & Gamble, 356 U.S.

677, 683 (1958).

Showing a particularized need for the material implicitly requires the party seeking

disclosure to demonstrate a specific and allowable use for the testimony. In re Lynde, 922 F.2d

1448, 1452 (10th Cir. 1991). Even a showing that the testimony would be relevant and helpful in

a connected proceeding is not sufficient to meet this burden. Id.

Aside from trying to bait the United States by insinuating that the grand jury transcripts

must contain evidence of perjury, Defendant Estrada fails to articulate any “particularized need”

to support his motion to compel. He instead relies on a general proposition that due process

requires disclosure of any evidence to attack the reliability of a police investigation. Doc. 36 at

23. But such a general statement hardly meets the requirement of demonstrating a

“particularized need” for the United States to disclose grand jury testimony to him.

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It may be that Defendant Estrada will be entitled to receive some grand jury transcripts as

prior witness statements under the Jencks Act – a matter that is discussed below – but that will

only be if and when a grand jury witness is also called to testify at trial. The initial grand jury

transcripts were provided to the defense only as a matter of professional courtesy in hopes of

avoiding discovery issues. But that choice has proven to be too optimistic, as reflected by the

defense bombarding the United States with a seemingly limitless number of discovery demands,

as demonstrated both by the pages of demands made in his letters attached to his motion, see

Doc. 36 at 36-1, 36-2 and 36-3,7 and his most recent request for the Court to set a briefing

schedule for even more anticipated motions to compel to come. Extending Defendant Estrada’s

attorneys a professional courtesy, of course, did not thereby vest Defendant Estrada with a due

process right to conduct a wholesale fishing expedition, or obtain any and all transcripts he may

now want. United States v. Mayes, 917 F.2d 457, 461 (10th Cir. 1990) (“The constitution does

not grant criminal defendants the right to embark on a ‘broad or blind fishing expedition among

documents possessed by the Government.’” (quoting Jencks v. United States, 353 U.S. 657, 667

(1957)).

There is also nothing nefarious about the fact that the indictment was superseded.

Indeed, the two versions of the indictment, and the differences between them, are freely available

for anyone to see. In fact, superseding the indictment to change references from “wire”

communications to “electronic” communications made moot Defendant Estrada’s earlier motion

to dismiss. See Docs. 20, 30. Prosecutors are entitled to fine-tune an indictment, and when it

7 By adopting a strategy of inundating the United States with reams of discovery demands that vastly exceed the discovery to which he is lawfully entitled, Defendant Estrada has apparently chosen to adopt a strategy of trying to play “gotcha” with the prosecution. But such a strategy also makes it far more difficult both to discern, and engage in good faith negotiations with the defendant over, what might be his more sincere or reasonable disclosure requests, even if those requests involve material to which the defendant is not entitled under the rules.

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17

makes sense to make a change, then it is a right that is exercised with some frequency. The

defense’s speculation that the superseding indictment means anything more than that is a

proverbial tempest in a teapot.

Defendant Estrada also asserts that the agent made “false statements to the grand jury.”

Doc. 36 at 23. Even assuming arguendo that a witness may have misspoken, there are countless

ways in which such an occurrence could be explained. For example, Defendant Estrada

represented to this Court that the United States did not convey its position with respect to his

motion for a briefing schedule. Id. at 3. In fact, the United States provided defense counsel a

letter on March 6, 2014 (which counsel’s representative signed for on the same day), stating,

“With respect to your request for early disclosure of Brady and Jencks material, we have

provided and continue to provide disclosures in this matter that far exceed our discovery

obligations. We object, however, to any order that would compel us to do so.” Of course, the

United States does not read any bad faith into defense counsel’s misstatement to the Court.

Viewed properly, Estrada’s request IV(B) is nothing more than a request for Jencks

material months in advance of trial. The United States has not determined its witnesses yet and

will continuously refine its witness list as trial approaches. For each witness the United States

intends to call, it will produce required material at the appropriate time. Our discussion of the

timing of Jencks disclosures is below.

C. Request IV(C)

In part IV(C) of his motion, Defendant Estrada requests this Court to compel the United

States to produce “[m]aterials containing information about the concerns, beliefs, opinions and

predictions of Martinez, McCleskey, and other members of the Martinez campaign and

administration listed in Subsecton E(16) of the Defense’s June 14, 2013 discovery letter

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18

(attached as Exhibit A), about the potential and actual public reaction to and political

consequences of the public disclosure of any email addressed to any address at susana

2010.com.” Doc. 36 at 24. The United States finds Defendant Estrada’s request IV(C) to be

largely inscrutable. Moreover, he barely even tries to justify it, other than by simply asserting

that obtaining such information is “critical to establish other reasons Martinez may have had to

promote actively the prosecution of Estrada.” Id. The gist of the request appears to be a

repetition of his earlier themes, including his contention that the “selective” charges against him

are not what his trial will be about. Id. To the extent that the United States has not already

addressed these themes, our best guess is that request IV(C) is a request for Jencks material

coupled with an aspirational theory of relevance. Accordingly, we treat it as a repetition of

Defendant Estrada’s request for early Jencks material, which is the subject discussed below.

D. Jencks material

In his final itemized request, Defendant Estrada moves this Court to compel the United

States to produce to him months in advance of trial what he characterizes as “Jencks material.”

Doc. 36 at 25. He specifically identifies only two such alleged “Jencks” items but speculates,

without any support whatsoever, “that there may be substantial Jencks material” in addition to

those two items. Based entirely on his own unsupported guess, he then asserts that “due to the

apparent volume of Jencks material” the defense needs “adequate lead time” to obtain it – that is,

time prior to the time set forth in his proposed briefing schedule – in order “to file appropriate

motions to compel and motions in limine.” Id.

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19

The items that Defendant Estrada specifically seeks this Court to compel the United

States to produce to him are alleged notes from two interviews with Governor Martinez,8 and an

email and a letter from Paul Kennedy, Esquire, who represents Governor Martinez in her role as

a victim in this matter, to the United States Attorney.

In fact, the very first provision of the Jencks Act, 18 U.S.C. § 3500(a), prohibits

compelled disclosure of witness statements prior to the witness’s testimony – which essentially

bars the relief Defendant Estrada has requested in this motion:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

18 U.S.C. § 3500(a). Rule 26.2(d) of the Federal Rules of Criminal Procedure makes provision

for courts to accommodate an attorney’s need to prepare a cross-examination in light of freshly-

produced Jencks material, but this rule does not purport to override the statutory bar on

compelled disclosure of witness statements (nor could a rule override a statute even if it

purported to do so). See United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988) (“[T]he

government cannot be compelled to disclose impeachment material which would be covered by

the Jencks Act[.]”); United States v. Smaldone, 544 F.2d 456 (10th Cir. 1976) (holding that

statements producible under Jencks could only be compelled after the witness’s direct

testimony). Indeed, although Defendant Estrada does not say so, it appears that he may already

realize that his request does not fall within any “technical adherence to the rule,” Doc. 36 at 25,

8 It should be noted that on June 25, 2013, the United States voluntarily produced to Defendant Estrada an FBI report memorializing an interview that agents conducted with Governor Martinez. As discussed below, the United States had no obligation to produce that document to the defendant yet Defendant Estrada makes no mention of even having received it in his motion.

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because he basically suggests that the real reason this Court should order disclosure is simply out

of a “spirit of a more open exchange of discovery in federal cases.” Id.9

In light of Defendant Estrada’s two “Jencks” requests in part IV(C) of his motion, it is

nonetheless worth noting that even if the United States could be compelled to produce Jencks

material prior to trial, neither of Defendant Estrada’s requests actually qualify as Jencks material.

Under both the Jencks Act and Rule 26.2, the government is only required to disclose—after

direct-examination of its witness—the witness’s previous statements relating to the subject

matter of the witness’s testimony. Both the Act and the Rule, however, expressly limit this

disclosure obligation to writings or recordings that qualify as “statements” under the definitional

language of those provisions, as follows:

(1) a written statement made by said witness and signed or otherwise adopted by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof,

which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e); see also Rule 26.2(f) (substantially same); Palermo v. United States, 360

U.S. 343, 354 (1959) (“The Act’s major concern is with limiting and regulating defense access to

government papers, and it is designed to deny such access to those statements which do not

satisfy the requirements of (e), or do not relate to the subject matter of the witness’ testimony.”).

It is for this reason that not even agent reports of interviews with prospective witnesses qualify as

Jencks material for that witness.10

9 Unless casting aspersions upon government agents counts as “discovery,” undersigned counsel cannot recall any discovery that Defendant Estrada has actually “exchanged” with the government to date. The United States awaits what may be produced in the future. 10 See, e,g., United States v. Smaldone, 484 F.2d 311, 316-18 (10th Cir. 1973) (refusing to require production of attorney notes even where the AUSA took notes during a trial preparation interview with a witness and “sometimes” read them back to the witness to make sure that they were accurate because there was no indication whether the answers read were verbatim or

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21

In this case, moreover, the United States can say that it does not presently have any

intention of calling Mr. Kennedy as a witness at trial, so it is difficult to conceive how the

defense believes a letter he may have written would somehow fall within the purview of the

Jencks Act under any circumstances.

Regardless, in considering the entirety of Defendant Estrada’s motion, the Court should

be aware that notwithstanding the limits of the Jencks Act and other rules, the United States

nevertheless has voluntarily produced material to Defendant Estrada that far exceeds that which

it was required to produce, and it has produced that material far in advance of trial. As of

December 6, 2013, for example, the United States had voluntarily disclosed to Defendant Estrada

approximately 57 FBI reports of witness interviews. The United States produced this volume of

reports without request or argument. Moreover, despite its lack of statutory obligation, the

United States anticipates that it will voluntarily produce any actual Jencks material

approximately one week before trial, to eliminate any need for delays during the progress of the

substantially so, and therefore the court concluded that the notes did not qualify as a “statement” under the Jencks Act); United States v. Shannahan, 605 F.2d 539, 542 (10th Cir. 1979) (holding that the trial court did not err in declining to permit the defense counsel to use, on cross-examination, an FBI agent’s reports of a witness’s prior statements made during interviews, where the reports were not signed or otherwise adopted or approved by the witness, and the reports therefore did not come within the rule authorizing use of prior statements); Dennis v. United States, 346 F.2d 10, 19-20 (10th Cir. 1965) (holding that the trial court properly withheld disclosure under the Jencks Act of documents that summarized interviews with a government witness, since none of the documents could be said to be a verbatim recital within the meaning of 18 U.S.C. § 3500(e)(2), even though the documents were couched in the vernacular of “Informant stated,” and “Informant advised” or “Informant related”), rev’d on other grounds, 384 U.S. 855 (1966); Johnson v. United States, 269 F.2d 72, 73-74 (10th Cir. 1959) (noting that § 3500 indicated a studied congressional purpose to limit the right of a defendant to the production of statements as defined in the statute, to be used for impeachment purposes only, and holding that a memorandum prepared by an FBI agent summarizing his prior interview with the defendant was beyond the purview of the term “statement” as used in the statute because it constituted only the agent’s interpretations and impressions).

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22

trial. Despite Defendant Estrada’s speculation to the contrary, at present the United States does

not expect that material to be voluminous.

Conclusion

For the foregoing reasons, this Court should deny Defendant Estrada’s Motion To

Compel Discovery and Set a Briefing Schedule.

Respectfully submitted, STEVEN C. YARBROUGH Acting United States Attorney /s/ Filed Electronically FRED FEDERICI JEREMY PEÑA Assistant U.S. Attorneys P.O. Box 607 Albuquerque, New Mexico 87103 (505) 346-7274 I HEREBY CERTIFY that on March 24, 2014, I filed the foregoing electronically through the CM/ECF system, thereby using the court’s transmission facilities to make service upon all counsel of record in this case. /s/ Filed Electronically Jeremy Peña Assistant U.S. Attorney

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A abqjournal"comhttp://www.abqjo urnal.co m/115884labqnewsseeker/gov-martinez-alleges-hacking-of-cam paign-ernail.htm I

Gov. Martinez Alleges Hacking of Campaign EmailBarryMassey/TheAssociatedPress Fri,Jun29,20'l 2

Posted: 4:29 pm

SANTA FE (AP) -Aspokesman f or Gov. Susana Martinez says the FBI has been asked to investigate whethera campaign email system was hacked to obtain correspondence involving the governor and her top advisers.

The allegation comes after a union-f unded political action committee released email sent last year to thegovernor's deputy chief of staff at a2010 gubernatorialcampaign emailaddress f rom a lawyerfor a horseracing track and casino seeking a new lease at the state f airgrounds.

lndependent Source PAC Executive Director MichaelCorwin said the emailcame f rom a source who assuredhim it was obtained legally.

An FBlspokesman said Friday the agency has received inf ormation f rom the governor's off ice concerning theemail issue but it's FBI policy to not comment on whether there's an investigation.

MED 0018

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ll abqjournal.com http:/lwww.abqjournal.com/206691/news/fundraiser-for-gop-talkedto-{bi-agents-about-downs-deal.html

Fundraiser for GOP talked to FBI agents about Downs dealMike Gallagher / Jor-rrnal lnvestigativeReporter

A prominent Republican fundraiser says FBI agents questioned her in a recent interviewabout the controversial Downs atAlbuquerque racino contract.

Andrea Goff, former finance director of Susana Martinez for Governor and SusanaPAC, madethe disclosure in a statement she released over the weekend.

Goff, of Hobbs, declined to elaborate on the specifics of the interview three weeks ago but saidnone of the questions was related to the indictment last week of Jamie Estrada. Estrada,another Republican insider, was charged last week with hijacking the Susana2010 websiteand intercepting email traffic.

Gov. Susana Martinez administration insiders have said that asking questions about the Downs would have been anormal part of the FBI investigation in the emails theft case.

Martinez spokesman Enrique Knell said, "As a prosecutor for over 25 years, the governor knows criminals always tryto blame the victim. Looking into all their allegations, no matter how ridiculous, is standard procedure and good due-diligence in preparation for trial."

Asked whether the FBI is investigating the Downs racino contract, FBI spokesman Frank Fisher said the agencycan't confirm or deny investigations.

FBI agents have been asking questions about the Downs for more than a year. For example, agents talked to StateFair Commissioner Charlotte Rode of Albuquerque, a vocal critic of the Downs deal, last year. And at least two otherformer Martinez campaign workers have been asked questions about the Downs.

No federal grand jury subpoenas have been served on state agencies for records, and many key players involved inthe deal say they have not been interviewed.

Asked on Monday if anyone involved with SusanaPAC or other political organizations aligned with Martinez had beeninterviewed or records subpoenaed, Martinez political adviser Jay McCleskey said, "No."

Knell said that the FBI has not interviewed anyone at the Governor's Office and that the administration hasn'treceived any federal grand jury subpoenas in connection with the Expo/Downs contract.

Knell said his answer applied to Expo New Mexico as well.

Chief Operating Officer of the Downs atAlbuquerque Scott Eldredge said in a text message that no one from theDowns has been interviewed by the FBl.

Knell said that the allegations are "baseless" and that some of them are nearly 2 years old.

The Downs lease

The process used by Expo New Mexico to select who got to build a $20 million casino and operate the racetrack for25 years was questioned and criticized while it was going on during the summer and fall of 2011. Journal storiesreported on the process from the start and the controversies that followed.

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The contract was approved on a 4{o-3 vote in late November 20 11 over protests from State Fair neighbors and twomembers of the State Fair Commission.

The vote came after several amendments were made to the contracl by commissioners, including Andrea Goffsfather-in-law, State Fair Commissioner Buster Goff, who also voted to approve the contract.

The state Board of Finance, chaired by Martinez, approved the contract after more amendments were madetoughening up enforcement provisions of the contract if the Downs failed to meet conditions on when payments weredue.

Martinez's office has insisted the process was fair and competitively bid.

Only two companies - the Downs at Albuquerque and Laguna Development Corp. - responded to the 1oo-pageRequest for Proposals within the required 30 days.

Critics, like Rode, said that was too short a time period to allow for real competition.

Others said the deal needed to get done because the Expo was in debt and relied on income from the track andcasino.

Defenders of the deal said the state was not required lo go out to bid. Toward the end of Gov. Bill Richardson'sadministration, there were sole-source negotiations with the Downs to extend its lease for 40 years.

Two of the Downs owners - Bill Windham and John Turner, both of Louisiana - and companies afflliated with themcontributed to Martinez's campaign and gave smaller amounts to her Democratic opponent, Diane Denish.

Their partne( Paul Blanchard, was finance chairman for Bill Richardson's first run for governor and was a majorcontributor and fundraiser for Richardson's subsequent campaigns for governor and president.

Last year, emails distributed by Martinez critic Michael Coruin, who runs a union-funded, anti-Martinez PAC, showedthat Downs attorney and Republican insider Pat Rogers was complaining to Martinez's staff and to McCleskey abouthow the State Fair Commission was stalling on coming to a final vote on the Downs'contract.

The commissioners originally scheduled two meetings - one to discuss the contract and another lo vote on it.

The emails distributed by Corwin were among the hundreds alleged to have been illegally intercepted by Estrada,who now faces a federal felony indictment for hijacking the emails addressed to a former Martinez campaign emailaddress.

Corwin made some of the emails public and said he turned all of them over to state and federal authorities. AttorneyGeneral Gary King made them all public, including many ofa personal nature, in response to media requests underthe lnspection of Public Records Act.

Last year, CoMin also wrote a letter to the FBl, saying that Andrea Goff s job with Martinez's campaign and herfather-in-law's role on the commission raised more questions about the Downs contract.

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