United States v. Bauzo-Santiago

50 F. Supp. 3d 131, 2014 U.S. Dist. LEXIS 145875, 2014 WL 5089174
Procedural entryThis page is a short order in United States v. Bauzo-Santiago. Read the opinion of the Court — 51 F. Supp. 3d 198
District Court, D. Puerto Rico·Decided October 10, 2014·No. Criminal No. 12-602 (FAB)·Published

Opinion

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court are defendant Jaime Bauzo-Santiago’s motion to dismiss the indictment with prejudice (Docket No. 166), the government’s opposition (Docket No. 172), the defendant’s reply (Docket No. 178), and the government’s sur-reply (Docket No. 180). For the reasons expressed below, defendant Bauzo’s motion to dismiss is DENIED.

I. BACKGROUND

On September 29, 2014, defendant Bau-zo filed an ex parte motion to appoint an expert investigator. (Docket No. 120.) The Court granted the defendant’s motion in an ex parte order on September 30, 2014. (Docket No. 127.) On October 1, 2014, defendant Bauzo filed a notice informing the Court and the government that the defendant could call expert Evar-isto Alvarez Ghigliotti to testify that the signature purported to be the defendant’s on the waiver of rights executed by Puerto Rico Police Officer Eduardo Santos Davila is not the defendant’s signature. (Docket No. 138.) Because defendant Bauzo’s notice was filed late, the Court denied the use of this expert. (Docket No. 140.) On October 2, 2014, defendant Bauzo filed an ex parte motion for reconsideration of the order denying the use of expert Alvarez. (Docket No. 145.) On October 6, 2014, before the Court ruled on the motion for reconsideration, defendant Bauzo filed— without restrictions — expert Alvarez’s report. (Docket No. 160-1.) On that same day, the Court issued a memorandum and [133]*133order denying defendant Bauzo’s motion for reconsideration, thereby sustaining the denial of Ms use of expert Alvarez. (Docket No. 161.) Because defendant Bauzo filed the expert report without restrictions, the Court also ordered the restrictions on Docket Nos. 120, 127, and 145 to be removed. (Docket No. 163.) On October 7, 2014, defendant Bauzo filed a motion to dismiss the indictment with prejudice, claiming that the Court’s removal of the restrictions from Docket Nos. 120, 127, and 145 denied the defendant his right to not disclose his defense and strategy to the government. (Docket No. 166.) The government opposed the motion to dismiss on October 8, 2014 (Docket No. 172.) On October 9, 2014, the defendant replied, (Docket No. 178), and the government filed a sur-reply, (Docket No. 180.)

II. ANALYSIS

A. Ex Parte Applications Pursuant to 18 U.S.C. § 3006A(e)(l)

Section 3006A(e)(l) of Title 18 of the United States Code provides as follows:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. .Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court ... shall authorize counsel to obtain the services.

18 U.S.C, § 3006A(e)(l). The purpose of handling section 3006A(e)(l) applications ex parte is to “prevent[] the possibility that an open hearing may cause a defendant to reveal his defense.” United States v. Abreu, 202 F.3d 386, 390 (1st Cir.2000) (citing H.R.Rep. No. 88-864 (1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990).

Defendant Bauzo relies on four cases, Abreu, Correar-Alicea, Sutton, and Marshall, to support his arguments that the Court’s removal of the restrictions from Docket Nos. 120, 127, and 145 denied him his right to have section 3006A(e)(l) matters conducted ex parte and that the only remedy is dismissal of the indictment with prejudice. (Docket Nos. 166,178.)

In Abreu, 202 F.3d at 388, the defendant filed an ex parte request seeMng expert funding for a psychological evaluation pri- or to sentencing. The district court held a hearing on the matter, at which time “defense counsel declined to place on the record certain confidential matters that formed part of the basis for the application” because the government was present. Id. The district court denied the request for expert services. Id. The First Circuit Court of Appeals held that the district court erred “in not handling the entire application on an ex parte basis” and remanded for the district court to “hear ex parte ... new matters that counsel ... refrained from presenting before on grounds of privilege or confidentiality.” Id. at 391.

In United States v. Correa-Alicea, 585 F.3d 484, 491 (1st Cir.2009), the defendant filed an ex parte motion requesting funds for a voice identification expert. The district court denied the request, but in so doing, disclosed to the government that the request was for funds to retain a voice identification expert. Id. at 493. The government conceded that the Court’s disclosure was an error, and the First Circuit Court of Appeals agreed. Id. The First Circuit Court of Appeals nonetheless held that the error was harmless because voice identification was not pivotal to the defendant’s defense and because. the government presented overwhelming evidence of the defendant’s guilt. Id.

[134]*134In United States v. Sutton, 464 F.2d 552, 553 (5th Cir.1972), the district court held a hearing on the defendant’s request for funding for investigative services. Id. The government’s presence at the hearing caused defense counsel to “decline to reveal ... the names of witnesses and the nature of the information which would be the object of th[e] investigation” so as to not disclose the defense. Id. The Fifth Circuit Court of Appeals held that the district court’s denial of the request for an investigator based on an inadequate showing of necessity was improper and warranted reversal. Id.

In Marshall v. United States, 423 F.2d 1315, 1317 (10th Cir.1970), the defendant requested funding for investigative services to locate and interview two potential witnesses. The district court held a hearing on the matter, at which the defendant testified under oath to establish the basis for the services sought. Id. The government cross-examined the defendant extensively at the hearing and used this testimony to impeach the defendant when he testified at trial. Id. The government also used new information that it acquired at the hearing to call a rebuttal witness at trial whose “testimony bolstered the prosecution.” Id. at 1319. The Tenth Circuit Court of Appeals reversed the defendant’s conviction, holding that “section 3006A(e) can[not] be used directly in an adversary proceeding ... as a means of frustrating the fifth amendment right prohibiting self-incrimination.” Id.

B. Removal of the Restrictions from Docket Nos. 120 and 127

In his ex parte application for the services of an investigator filed on September 29, 2014, defendant Bauzo revealed the following:

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United States v. Bauzo-Santiago, 50 F. Supp. 3d 131, 2014 U.S. Dist. LEXIS 145875, 2014 WL 5089174 (prd 2014).

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Related

United States v. Correa-Alicea
585 F.3d 484 (First Circuit, 2009)
Cleburn Lee Marshall v. United States
423 F.2d 1315 (Tenth Circuit, 1970)
United States v. Clarence J. Sutton
464 F.2d 552 (Fifth Circuit, 1972)