Court affirms trial court's exclusion of late-disclosed government evidence

U.S. v. Yepa, 2015 WL 3757193 (6/17/15) (N.M.) (unpub'd) - The 10th affirms in a split decision the judge's exclusion of government evidence that was made part of an exhibit list almost 3 months past the deadline for the exchange of exhibit lists and a week before trial. The good news is the 10th was willing to approve a sanction imposed on the government. Of course, the logic of the decision could justify an exclusion of defense evidence as well. The 10th has affirmed such exclusions on several occasions. In this case, the excluded evidence was a recording of a 911 call purportedly from the victim during her sexual assault that resulted in her death. The day after the murder, the Jemez Pueblo Police Department ("JPPD") gave FBI Agent Bourgeois the CAD for the call. But the agent didn't consider it a priority because the CAD didn't give the victim's name. It just said it was from a drunk, belligerent woman calling from outside the pueblo [due to some cell tower anomaly]. The day after the murder Mr Adams told the JPPD he saw Mr. Yepa raping the victim. Mr. Adams said he took the victim's phone and later threw it away. He led a JPPD officer to where the phone was. The JPPD kept the phone in evidence in the file corresponding to Mr. Yepa's case. The agent knew Mr. Adams led the officers to where he threw the phone, but supposedly didn't know whether they found the phone. He never asked the JPPD if they had. Around a week after the murder, the agent asked for evidence dealing with Mr. Yepa's case, but he wasn't given the victim's phone or the officer's report about finding it. Meanwhile, Judge Armijo set May 15, 2013, as the deadline for the exchange of exhibit lists. In June, 2013, the prosecutor, and the agent retrieved from the 911 dispatch office, and listened to, the 911 call. The prosecutor asked the agent to see if the phone number on the 911 CAD was tied to the victim's. It was her number, but the agent didn't do what the prosecutor asked him to do and the prosecutor didn't follow up. On July 31, the agent and prosecutors learned by accident that the victim's cell phone had been found and was in the JPPD files. A week later, and one week before trial was scheduled, the government added the 911 recording to the exhibit list because the agent eventually found from the phone data that the victim had called 911 the night of her death.

The 10th applied the factors addressed in U.S. v. Wicker, 848 F.2d 1059 (10th Cir. 1988), a case in which our long-ago esteemed FPD colleague Peter Schoenburg obtained affirmance of exclusion of government expert evidence due to the tardy disclosure of the expert's drug report. First, the 10th agreed with the district court that, although the government did not act in bad faith, it did act negligently by not pursuing the phone and 911 recording evidence until accidentally coming upon it and then taking a week to reveal the phone's contents to the defense, one week before trial. Exclusion may be appropriate even without bad faith, the 10th says. Second, the 10th found the district court did not clearly err when it found the defense could not adequately prepare for trial as scheduled given the late designation of the recording. Third, even though a continuance would have cured the prejudice to the defense, the required 4-8 week continuance would have disrupted the court's schedule, inconvenienced the jurors who had already been summoned and kept Mr. Yepa in jail for more time before trial, implicating his speedy trial rights. The 10th says integrity and scheduling considerations alone may justify exclusion of otherwise admissible evidence. The 10th finds exclusion would not endanger a just adjudication given other evidence against Mr. Yepa. The 10th rejects the government's analogy to good-faith Fourth Amendment cases. In those cases, the point is to deter future misconduct, whereas in a discovery violation situation, the current misconduct could be dealt with, the 10th reasons.