USA v. Quinones-Davila et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA 	)
)
v. 	)
) 	Criminal Action No. 2016-0009
JOSE R. HODGE, et al., 	)
)
Defendants. 	)
__________________________________________)
Attorneys:
Alphonso G. Andrews, Jr., Esq.,
St. Croix, U.S.V.I.
Everard E. Potter, Esq.,
St. Thomas, U.S.V.I.
For the United States
Renee D. Dowling, Esq.,
St. Croix, U.S.V.I.
For Defendant Jose R. Hodge
MEMORANDUM OPINION
Lewis, Chief Judge
THIS MATTER comes before the Court on Defendant Jose R. Hodge’s (“Hodge”) Motion
for Sanctions (“Motion”) and Memorandum of Law in Support (“Memorandum”) (Dkt. Nos. 1463,
1464), and the Government’s Opposition to Hodge’s Motion (“Opposition”) (Dkt. No. 1472). In his
Motion, Hodge requests that the Court grant a continuance of trial or, in the alternative, dismiss the
indictment against him pursuant to Federal Rule of Criminal Procedure 16 in light of the
Government’s “failure to comply with the rules of discovery and inspection, and to adhere to the
Orders of this Court.” (Dkt. No. 1463 at 1). For the reasons that follow, the Court will deny Hodge’s
Motion.
I. 	BACKGROUND
In this multi-defendant drug trafficking case, Hodge is charged with five counts in a six-count
Second Superseding Indictment (“Indictment”) filed on February 21, 2018: one count of conspiracy
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to possess a controlled substance with intent to distribute, three counts of attempted possession of
cocaine with intent to distribute, and one count of possession of cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A)(ii), and 846. (Dkt. No. 1216). The Indictment alleges
that “[f]rom on or about January 2014 until on or about March 2016,” Hodge and others “did conspire
and agree with one another . . . to knowingly and intentionally possess, with intent to distribute, more
than five kilograms of a mixture and substance containing a detectible amount of cocaine
hydrochloride (cocaine powder) . . . and a detectible amount of marijuana . . . .” Id. at 3. The
Indictment further alleges that during the conspiracy, some of the Defendants traveled by boat south
of St. Croix to effect the mid-sea retrieval of cocaine, which was then brought back to St. Croix and
transshipped to Puerto Rico. Id. at 4.
A first trial in this matter resulted in a mistrial in July 2017. A second trial began on April 30,
2018. On May 15, 2018, Government witness Brian Gaumond—a Special Agent (“SA”) with the
Drug Enforcement Administration (“DEA”)—testified during cross-examination that part of the basis
for DEA’s decision to provide confidential informant Timothy Schoehnbohm with funding for his
relocation from St. Croix to Florida was a threat allegedly made against Schoenbohm by a defendant
in this case.1 SA Gaumond further testified that the alleged threat was made over the phone, and that
Schoenbohm recorded the telephone conversation and provided DEA with the recording.
Following this testimony, counsel for all Defendants asserted that the Government had not
produced the recording containing the alleged threat in discovery. The Government provided
Defendants with a copy of the recording—which is labeled N-52—and confirmed after its review of
discovery produced that it had no record of a prior production of the recording to Defendants.
However, the Government noted that it had provided Defendants with a DEA-6 referencing the
1 Although SA Gaumond did not identify which defendant allegedly made the threat, sidebar
discussions among the parties and their later review of the recording at issue confirmed that Hodge is
purportedly the defendant implicated in the incident.
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existence of the recording in its prior disclosures.2 Counsel for Hodge argued that the Government’s
failure to disclose the recording constituted a discovery violation and indicated that Hodge intended
to seek relief as a result. The Court ordered Hodge and the Government to brief the issue of any relief
to which Hodge may be entitled. (Dkt. No. 1459).
In his subsequent Memorandum, Hodge argues that he is entitled to a continuance of trial
under Federal Rule of Criminal Procedure 16(d)(2)(B) as a result of the Government’s untimely
disclosure of the recording. (Dkt. No. 1464 at 2). In support of his request, Hodge notes the
“overwhelming” volume of discovery in this case and asserts that, in light of the newly-disclosed
recording, his counsel must “make a new perusal of the discovery to determine if any other material
could be used in conjunction with the [recording] to mount a defense of entrapment,” as the
information revealed on the recording “seems to point to such.” Id. Although Hodge does not specify
the length of the “reasonable continuance” he requests, he maintains that a review of “the discovery
in its entirety . . . would take days if not weeks to accomplish . . . .” Id. at 2-3. Hodge also argues, in
the alternative, that an appropriate remedy for the Government’s untimely production of the recording
is the dismissal of all charges against him under Federal Rule of Criminal Procedure 16(d)(2)(D). Id.
at 3. He contends that while “a continuance is feasible, it will disrupt the trial that is in progress to
the possible detriment of the other defendants,” and that in light of this potential disruption of trial
the “just ruling under the circumstances” would be dismissal of the charges against him. Id. at 3-4.
In its Opposition, the Government concedes that it did not produce a copy of the recording in
its pretrial discovery. (Dkt. No. 1472 at 1-2). However, it asserts that it submitted a DEA-6 to
Defendants in May 2017 during the first trial of this matter which “identified N-52 [the recording]
2 “DEA-6” is shorthand for a Drug Enforcement Administration Form 6—Report of Investigation.
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and provided a summary of the audio’s contents . . . .” Id. at 2.3 The Government claims that it did
not act in bad faith in neglecting to produce the recording, and argues that Hodge has failed to
demonstrate that he has been prejudiced by the Government’s untimely disclosure given that he was
in possession of a summary of the contents of the recording as of May 2017. Id. at 3-4.
II. 	DISCUSSION
A. 	Applicable Legal Standards
Discovery obligations in a criminal case are set forth in Federal Rule of Criminal Procedure
16 (“Rule 16”). With respect to written or recorded statements, Rule 16 provides, in pertinent part,
that “[u]pon a defendant's request, the government must disclose to the defendant, and make available
for inspection . . . 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.” FED. R. C RIM. P.
16(a)(1)(B). In the event of a party’s failure to comply with a discovery request, Rule 16 authorizes
a court “to permit the discovery or inspection, grant a continuance, or prohibit the party from
introducing evidence not disclosed, or . . . enter such other order as it deems just under the
circumstances.” United States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001) (quoting FED. R. C RIM. P.
16(d)(2)).
While a court may impose a wide variety of sanctions for a discovery violation, “these
sanctions are discretionary; ‘Rule[16] does not require a district court to do anything.’” United States
v. Jones, 503 F. App'x 174, 178 (3d Cir. 2012) (quoting Lopez, 271 F.3d at 484). Where a court
determines that the government has failed to comply with Rule 16, it must consider any harm caused
by the violation and fashion a remedy that is adequate to provide a defendant with a fair trial—i.e.,
3 The Government attached a copy of the DEA-6 to its Opposition as Exhibit 1. Because that copy
was illegible, the Government subsequently filed another copy with the Court. (Dkt. No. 1474)
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produce a “verdict worthy of confidence.” United States v. Lee, 573 F.3d 155, 162 (3d Cir. 2009)
(quoting United States v. Mitchell, 365 F.3d 215, 254 (3d Cir. 2004) (internal quotation omitted)). In
fashioning an appropriate remedy, “a district court should consider the reasons for the party's delay
in producing the materials, including whether it acted intentionally or in bad faith, and the degree of
prejudice 	to 	the 	opposing 	party.” 	Id. 	at 	161. 	The 	court 	should 	attempt 	to 	“impose
the least severe sanction that will accomplish prompt and full compliance” with the government’s
Rule 16 obligations. Jacobs v. Gov't of Virgin Islands, 53 F. App'x 651, 652 (3d Cir. 2002) (quoting
United States v. Ivy, 83 F.3d 1266, 1280 (10th Cir. 1996)).
B. 	Analysis
In the instant case, the Court concludes that the Government’s failure to timely produce to
Hodge the recording of the telephone conversation allegedly between Hodge and Schoenbohm
constitutes a violation of Rule 16(a)(1)(B). The rule requires the Government to disclose and make
available for inspection “any relevant written or recorded statement by the defendant if the statement
is within the government’s possession . . . and the attorney for the government knows . . . that the
statement exists.” FED. R. C RIM. P. 16(a)(1)(B). “Recordings of a defendant's telephone conversations
contain statements within the meaning of this provision.” United States v. Pesaturo, 519 F. Supp. 2d
177, 187 (D. Mass. 2007) (citing United States v. Lanoue, 71 F.3d 966, 973–74 (1st Cir. 1995)). The
Government does not dispute that it was in custody of the recording and that its lead counsel was
aware of the recording. Accordingly, the Government had an obligation to produce the recording to
Hodge under Rule 16(a)(1)(B), and its failure to timely do so constitutes a discovery violation.
Nonetheless, the Court finds that Hodge’s proposed remedies for the Rule 16 violation—a
continuance of trial or the dismissal of the Indictment against him—are neither necessary nor
appropriate under the circumstances. Hodge claims that a continuance of unspecified length is
warranted here because his counsel must now review the entirety of the discovery disclosed in this
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case to determine, in light of the newly-produced recording, whether any materials support a possible
entrapment defense. Other than his vague assertion that the recording “seems to point to” the viability
of an entrapment defense, however, Hodge provides no basis or support for his argument that the
recording gives fodder to an entrapment defense.4 Further, although Hodge did not receive a copy of
the recording itself until May 15, 2018, the DEA-6 disclosed by the Government in May 2017 states,
in relevant part:
During the CS’s conversation with HODGE, the CS inquired about the earlier threat made by
HODGE. HODGE told the CS in sum and substance that the CS was saying things about him
(HODGE) that wasn’t [sic] true and that it was a threat to his (HODGE) family as well.
HODGE told the CS that he considered him/her a friend but not anymore and that he did not
want to be associated with the CS.
(Dkt. No. 1474-1 at 1).5 To the extent that comments of this nature form the basis of Hodge’s claim
that the recording “seems to point to” the viability of an entrapment defense, the Court notes that
Hodge’s counsel has been in possession of the DEA-6 for approximately one year, and thus has had
more than ample time to review the discovery through the prism of an entrapment defense.
Accordingly, given the prior disclosure of the DEA-6 summarizing the contents of the recorded
conversation, Hodge can show no prejudice resulting from the untimely disclosure of the recording
itself. The Court therefore rejects Hodge’s assertion that the Government’s discovery violation has
4 The Court does not intend to suggest that Hodge is under any obligation to reveal the details of his
trial strategies in a filing on the public docket. However, in view of (1) Hodge’s claim that his ability
to mount a reasonable defense is prejudiced by the Government’s untimely production, (2) his
counsel’s presumed familiarity with the discovery produced in this case, and (3) the Court’s
independent review of the recording at issue, the Court finds insufficient Hodge’s bare-bones
suggestion that the recording “seems to point to” an entrapment defense.
5 In his Memorandum, Hodge acknowledges that he received the DEA-6 “on or about May 26, 2017.”
(Dkt. No. 1464 at 2). While he claims that the DEA-6 contains only a “vague mention of the
recording,” id., the Court’s independent review of the DEA-6 revealed that the entirety of the two-
page document is dedicated to a discussion of the recording, including the above summary of the
contents of the conversation; the context in which the recording was made; and the chain of custody
while the recording was in DEA’s possession.
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“denied [him] the opportunity to develop a legal defense that is powerful and supported by the
evidence.” (Dkt. No. 1464 at 3).6
The Court is also perplexed by the claim that Hodge’s counsel requires “a reasonable
opportunity to review the discovery in its entirety” in order to make a determination as to whether
any of the materials previously disclosed would support a defense of entrapment. The majority of the
discovery materials disclosed in this case have been in the possession of Hodge’s counsel for at least
one year, as they were produced in connection with the first trial of this matter. Having reviewed
those materials in preparation for the first trial, litigated the first trial to its conclusion, and then
presumably reviewed the materials again in preparation for the second trial, Hodge’s counsel should
be intimately familiar with the discovery in this case. Even assuming that evidence of entrapment can
be distilled from the discovery materials together with the recording, the Court is unconvinced—
given Hodge’s counsel’s presumed familiarity with the discovery—that a continuance is necessary
under the circumstances here. As such, the Court does not find that a continuance of “days if not
weeks” to allow Hodge’s counsel more time to review discovery is a necessary or appropriate remedy
to ensure that Hodge is afforded a fair trial—particularly given his failure to demonstrate how the
Government’s untimely production has prejudiced his ability to mount an entrapment defense.7
6 While the Court recognizes that is the Government’s responsibility to produce discoverable
materials, it remains unclear why Hodge did not request a copy of the recording from the Government
based on a review of the summary of the conversation contained in the DEA-6, especially if he
believes that the recording provides him with the foundation necessary to develop a possible
entrapment defense. Hodge fails to explain this mystery.
7 The Court further notes that the parties have estimated that this trial—which is currently entering its
third week, excluding jury selection—will last approximately eight to nine weeks. The Government
estimated that its case-in-chief will last approximately six weeks. The Government’s case is therefore
expected to continue for approximately four more weeks before any Defendant is called to put on his
case. Considering her familiarity with the discovery in this case, this is more than sufficient time for
Hodge’s counsel to be able to identify any materials potentially relevant to an entrapment defense.
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In addition to Hodge’s failure to demonstrate that he faces prejudice as a result of the
Government’s untimely disclosure such that a continuance of trial is warranted here, the Court further
observes that there is no evidence in the record indicating that the Government’s Rule 16 violation
was committed intentionally or in bad faith. Any notion that the Government may have intentionally
withheld the recording is dispelled by its prior disclosure of the DEA-6, which alerted Hodge to the
existence of the recording and summarized its contents. The Government’s failure to produce the
recording itself appears to be the result of oversight.8
In sum, in light of the absence of prejudice to Hodge resulting from the Government’s Rule
16 violation, the Court concludes that Hodge has failed to demonstrate that a continuance of trial is a
necessary or appropriate remedy here. Further, dismissal of the Indictment would be a wholly
inappropriate remedy given the absence of any showing that the Government engaged in willful
misconduct by failing to disclose the recording. See Gov't of Virgin Islands v. Fahie, 419 F.3d 249,
259 (3d Cir. 2005). Accordingly, the Court will deny Hodge’s Motion for Sanctions.
III. 	CONCLUSION
For the reasons discussed above, the Court will deny Hodge’s Motion for Sanctions. An
appropriate Order accompanies this Memorandum Opinion.
Date: May 20, 2018 	_______/s/_______
WILMA A. LEWIS
Chief Judge
8 The Court does not suggest that it takes the Government’s discovery violation lightly. Given the
discovery issues that plagued the first trial, the Court required the Government to thoroughly review
its discovery during the pretrial period and attest that it had made all reasonable efforts to disclose
discoverable materials. Nonetheless, the Court does not find that the apparent oversight with respect
to the disclosure of the recording warrants sanctions in this instance—especially in light of the
Government’s disclosure of the DEA-6 discussing the recording and summarizing its contents.
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