Opinion
CRIMINAL ACTION 23-388
02-08-2024
UNITED STATES OF AMERICA v. HECTOR DOMINGUEZ-GABRIEL
MEMORANDUM
R. BARCLAY SURRICK, J.
Presently before the Court is Defendant Hector Dominquez-Gabriel's Motion for Production of Documents (“Mot.,” ECF No. 16) in connection with his sentencing. Dominguez-Gabriel's Motion seeks the following: (1) any and all notes created by Government agents during discussions between Dominguez-Gabriel and Government attorneys and/or agents on or about March 30, 2021; May 17, 2021; May 26, 2021; and August 13, 2021 (“Agent Notes”); (2) any recordings made by the Government of telephone calls placed by Dominguez-Gabriel at the Government's request; and (3) all sentencing memoranda filed by the Government and individual defendants in the case of United States v. Robinson, et al., No. 20-cr-415 (“Case No. 20-cr-415”). (Mot. ¶¶ 5, 7-9, 26, 28, 35.) Defendant argues that the requested discovery may be relevant to the Court's decision whether to impose the sentence in this case concurrently or consecutively to the federal sentence Dominguez-Gabriel is currently serving in United States v. Dominguez-Gabriel, 09-cr-157 (S.D.N.Y) (“the SDNY Case”). (Mot. ¶ 25; 10/4/23 COP Hrg. Tr. at 9-10, ECF No. 28.)
In its Response, the Government asserts that the Motion should be denied as moot with respect to the Government's sentencing memoranda regarding defendants who have been sentenced in Case No. 20-cr-415, as those documents have been made available to Dominguez-Gabriel's counsel. (Gov't Resp. at 2, ECF No. 20.) The Government further states that it does not have recordings of any telephone calls made by Dominquez-Gabriel at the request of law enforcement. (Id.) Finally, the Government asserts that the Motion should be denied as to agent notes, which it contends are not discoverable under Federal Rule of Criminal Procedure 16 or Brady v. Maryland, 373 U.S. 83 (1963), and have no relevance under 18 U.S.C. § 3553(a). (Id. at 2-4.)
On January 12, 2024, the Court held a hearing on the Motion. Based on the Court's consideration of the parties' submissions, the arguments presented at the hearing, the Court's in camera review of the Agent Notes, and the authority discussed below, Dominguez-Gabriel's Motion will be denied in part and denied as moot in part.
I. BACKGROUND
A. Current Proceedings
On September 6, 2023, the Government filed under seal a one-count Information charging Dominguez-Gabriel with conspiracy to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, in violation of 18 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A).(Information, ECF No. 1.) On September 12, 2023, the Government filed a Motion for a Limited Protective Order (ECF No. 3), noting that Dominguez-Gabriel was scheduled to plead guilty to the Information and requesting that disclosure of discovery materials the Government intended to produce in advance of the guilty plea hearing be permitted “only as needed by the defendant to prepare for further proceedings in this matter.” (ECF No. 3 at 1-2 (ECF pagination).) On September 13, 2023, the Court entered the Limited Protective Order requested by the Government (ECF No. 5) and appointed Christopher G. Furlong, Esquire, as counsel to represent Dominguez-Gabriel in this matter (ECF No. 4).
This matter and all filings therein are under seal.
On October 4, 2023, the Court held a change of plea hearing during which Dominguez-Gabriel waived indictment and pled guilty to the Information under a Guilty Plea Agreement made pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (the “C Plea”). (See 10/4/23 COP Hrg Minutes, ECF No. 7; Waiver of Indictment, ECF No. 8; Guilty Plea Agreement, ECF No. 11.) Under the C Plea, the parties agreed, inter alia, that a sentence of 120 months' imprisonment is appropriate, with Dominguez-Gabriel reserving his right to request that the sentence in this case run concurrently to the federal sentence he is currently serving in the SDNY Case, and the Government reserving its right to request that the sentence in this case run consecutively to that sentence. (Plea Agreement ¶¶ 2, 4.)
At the change of plea hearing, the Court conducted a colloquy of Dominguez-Gabriel, after which the Court found a factual basis for, and accepted, the guilty plea. (See generally, 10/4/23 COP Hrg. Tr.) Mr. Furlong then orally moved the Court to direct the Government to provide certain discovery, including the materials requested in the instant Motion, prior to Dominguez-Gabriel's sentencing. (Id. at 35-39.) The Court directed the defense to file a motion and the Government to respond thereafter. The defense filed its Motion on December 12, 2023, and the Government filed its Response on January 8, 2024 (ECF No. 20). On January 12, 2024, the Court held a hearing on the Motion, at the conclusion of which the Government provided the Agent Notes to the Court for in camera review. (1/12/24 Hrg. Tr. at 17-18, ECF No. 28.) At the January 12 hearing, the Government also advised the Court that it would not take a position at sentencing regarding whether Dominguez-Gabriel's sentence should be consecutive or concurrent, but would “defer to the Court on [that] issue.” (1/12/24 Hrg. Tr. at 12.)
B. Previous Proceedings and Government Meetings with Defendant
When the Government commenced these proceedings, Dominguez-Gabriel was serving 240-month prison sentence imposed in the SDNY Case, and he had been in continuous federal custody since June 18, 2009. (PSR at p. 1, ¶ 51, on file with Court.) Dominguez-Gabriel's current projected release date with respect to that sentence is July 30, 2025. (Id. ¶ 44.)
On or about March 25, 2021, the judge presiding over grand jury matter No. 19-gj-827 (E.D. Pa.) issued a sealed Order directing the Warden of the Bureau of Prisons and the North Lake Correctional Facility in Michigan, where Dominguez-Gabriel was then serving his SDNY Case sentence, to produce Dominguez-Gabriel to law enforcement agents for transfer to this District. (Mot. ¶ 3.) On or about March 30, 2021, Dominguez-Gabriel was transported by law enforcement agents to the Federal Detention Center (“FDC”) in Philadelphia, and he has remained in federal custody there since his transfer. (Id. ¶¶ 5-6; PSR at p. 1, ¶ 44.) While in transit from Michigan to Philadelphia, Dominguez-Gabriel had discussions with the transporting officers and spoke by phone with the Assistant U.S. Attorney who the Defense believes was handling the above-referenced grand jury investigation. (Mot. ¶ 7.) Upon arrival at the FDC, Dominguez-Gabriel was initially placed in the Secure Housing Unit (“SHU”), and while in SHU, Defendant met with prosecutors and/or investigating agents on May 17, 2021; May 26, 2021; and August 13, 2021. (Id. ¶ 9.) The Government has confirmed the existence of, and has obtained, Agent Notes of the March 30, 2021, car ride from Michigan to Philadelphia, the May 26, 2021 meeting at FDC, and another meeting for which the notes are not dated (the “Agent Notes”). (Gov't Resp. at 2.) In addition, during the FDC meetings, Defendant placed approximately four telephone calls to individuals whom Dominguez-Gabriel claimed were involved in drug trafficking. (Id. at 3.) The Government represents that it does not have recordings of those calls, and states that only one of the four calls was answered and, during that call, the individual who answered told Dominguez-Gabriel that they would call back but did not do so. (Id. at 2-3.)
On November 2, 2021, the Assistant U.S. Attorneys handling the 14-defendant drug distribution conspiracy charged in Case No. 20-cr-415, sent a letter to the Court requesting the appointment of CJA counsel for Dominguez-Gabriel. (11/2/21 Ltr., on file with Court.) In the letter, prosecutors described Dominguez-Gabriel as “a target of a DEA investigation [who] agreed to speak with agents and cooperate with an ongoing drug trafficking investigation related to several matters before [this Court], including Criminal Number 20-415.” (Id.) On February 7, 2022, the Court entered a sealed Order in Case No. 20-cr-415 appointing Mr. Furlong as his CJA counsel “in all matters before this Court.” (ECF No. 188.)
II. LEGAL STANDARD
In addition to the disclosures required under Brady, Giglio, and the Jencks Act, 18 U.S.C. § 3500, Federal Rule of Criminal Procedure 16(a) provides for the discovery and inspection of certain categories of information in criminal cases.With respect to the Government's disclosure obligations, Rule 16(a) provides in relevant part:
It is clear that Brady, Giglio, and Jencks disclosure obligations apply at sentencing. See United States v. Matakovich, No. 16-73, 2017 WL 3075100, at *2 (W.D. Pa. July 19, 2017) (collecting cases).
(B) Defendant's Written or Recorded Statement. Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:
(i) any relevant written or recorded statement by the defendant if:
• the statement is within the government's possession, custody, or control; and
• the attorney for the government knows--or through due diligence could know--that the statement exists;
(ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent. ...
(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.Fed. R. Crim. P. 16(a)(1)(B), (a)(1)(E).
Although there is limited caselaw on this issue, several courts have concluded that the government's disclosure obligations under Rule 16(a)(1)(B) apply at sentencing if the requested statements or records thereof are relevant to sentencing. See United States v. Kasperian, No. 15-272, 2023 WL 2025076, at *1-2 (E.D. Cal. Feb. 15, 2023) (noting that Rule 16(a)(1)(B) is not limited to information for use in a party's case in chief); United States v. Gaston, No. 17-235, 2021 WL 4132415, at *2 (E.D. Cal. Sept. 10, 2021) (holding that Rule 16(a)(1)(B) disclosure requirements apply at sentencing if the requested statements are relevant); United States v. Carucci, 183 F.R.D. 614, 614 (S.D.N.Y. 1999) (granting defense motion for discovery related to sentencing under former Rule 16(a)(1)(A), on grounds that the specific provision of the rule was not limited by its terms to disclosure of government's case-in-chief evidence).
Courts have also held that agent handwritten or rough notes, including of a proffer, are discoverable under Rule 16(a)(1)(B). See United States v. Whitted, No. 05-598, 2007 WL 9754085, at *1-2 (E.D. Pa. Apr. 11, 2007) (collecting cases and finding that a voluntary proffer qualifies as an “interrogation” under Rule 16).
In contrast, courts have held that the disclosure obligations of Rule 16(a)(1)(E) do not afford a defendant “generalized access to discovery” of items “material to preparing the defense” or that the government intends to rely on at sentencing. See United States v. Matakovich, No. 16-73, 2017 WL 3075100, at *3 (W.D. Pa. July 19, 2017) (denying request for all material government intended to rely on at sentencing); see also United States v. Robinson, 503 F.3d 522, 531-32 (6th Cir. 2007) (finding that Rule 16(a)(1)(E)(i) has no application to sentencing proceedings); United States v. McIntosh, No. 09-20133, 2014 WL 1612295, at *1 (D. Kan. Apr. 22, 2014) (collecting cases and denying motion for discovery under Rule 16(a)(1)(E) after defendant had been convicted and sentenced).
III. DISCUSSION
Turning to Defendant's specific requests, we conclude that the Government is not required to disclose the Agent Notes. Having reviewed the Agent Notes in camera, we are satisfied that they do not contain Brady material. Rather, the Agent Notes consist of shorthand and largely fragmented notations of information Defendant provided regarding other individuals allegedly engaged in criminal activity. The Agent Notes also do not contain information relevant to the factors the Court must consider in determining whether to impose a consecutive or concurrent sentence. See 18 U.S.C. § 3584(b) (“The Court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in § 3553(a).”). To the extent the Agent Notes reflect that Dominguez-Gabriel gave a proffer to the Government, such that the proffer could be construed as reflecting positively on “the history and characteristics of the defendant,” see 18 U.S.C. § 3553(a)(1), the fact of the proffer is already in the record, and the shorthand notations of its content add no relevant information. Accordingly, Dominguez-Gabriel's request for the Agent Notes is denied.
With respect to the sentencing memoranda in Case No. 20-cr-415, the Motion is denied as moot as to the Government's memoranda, which have been produced or made available to Defendant's counsel. With respect to sentencing memoranda submitted by defendants in Case No. 20-cr-415, Defendant is not entitled under Rule 16 to production of those documents in connection with sentencing.
Finally, based on the Government's representation that it does not have any recordings of calls made by Dominguez-Gabriel at its behest, the request for recordings is denied as moot.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Discovery is denied in part and denied as moot in part as set forth above. An appropriate order follows.