United States District Court, D. Colorado
Richard Santiago, also known as Chuco, Defendant, Pro se, FLORENCE, CO.
For Silvestre Mayorqui Rivera, also known as Chikali, Defendant: David Arthur Lane, LEAD ATTORNEY, Killmer, Lane & Newman, LLP, Denver, CO; Kathryn J. Stimson, Kathryn J. Stimson, Attorney at Law, Denver, CO.
For USA, Plaintiff: Mary Jo Menendez, LEAD ATTORNEY, Valeria Neale Spencer, U.S. Attorney's Office-Denver, Denver, CO; Jeffrey Bradford Kahan, U.S. Department of Justice-DC-Capital Case Unit, Washington, DC.
ORDER DENYING DEFENDANT'S MOTION FOR COURT ORDER REQUIRING BOP TO PERMIT JOINT MEETINGS WITH CO-DEFENDANTS RIVERA AND SANTIAGO AND TO CEASE INTERFERING WITH MR. RIVERA'S RIGHT TO PRESENT A DEFENSE
Robert E. Blackburn, United States District Judge.
The matter before me is Defendant Rivera's Motion for Court Order Requiring BOP To Permit Joint Meetings With Co-Defendants Rivera and Santiago and To Cease Interfering With Mr. Rivera's Right To Present a Defense [#991], filed February 5, 2015. The government filed a response [#999], defendant filed his reply [#1014 ], and the government was permitted to submit a surreply [#1019]. I heard the motion on March 10, 2015. Additionally, during the hearing counsel for Mr. Rivera was afforded the opportunity to make an ex parte proffer in support of the motion.
Having considered the parties' written and oral arguments and the ex parte proffer, I deny the motion.
In his motion, Mr. Rivera requests that I order the Bureau of Prisons to allow him to meet jointly with his co-defendant, Richard Santiago, who is representing himself pro se in this matter. Mr. Rivera claims that without such a face-to-face meeting, he will be deprived of his right to present a complete defense. For purposes of resolving this motion only, the court has agreed to assume that all facts argued in Mr. Rivera's written submissions are true and accurate. In addition, the court has considered defense counsel's oral ex parte proffer in which he described why he believes joint visits are indispensable to facilitate Mr. Rivera's anticipated defense at trial.
Mr. Rivera's motion invokes the Fifth Amendment right to a fair trial and the concomitant Sixth Amendment right to present witnesses in one's own defense:
A criminal defendant's right to present a defense is essential to a fair trial. The Fifth . . . and Sixth Amendments concomitantly provide a criminal defendant the right to present a defense by compelling the attendance, and presenting the testimony, of his own witnesses. The Supreme Court's broad reading of the Sixth Amendment's Compulsory Process Clause, " establish[es], at a minimum, that criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt." Likewise, " [t]he necessary ingredients of the [Fifth and] Fourteenth Amendment[s'] guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony[.]"
United States v. Serrano, 406 F.3d 1208, 1214-15 (10th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 277, 163 L.Ed.2d 247 (2005) (internal citations omitted; alterations in original). Mr. Rivera alleges that the BOP's, and thus the government's, refusal to allow a joint, face-to-face meeting between him and Mr. Santiago violates these principles by substantially interfering with a potential defense witness's decision to testify. Id. at 1215-16.
I disagree. Mr. Rivera invokes his Fifth and Sixth Amendment rights at the broadest possible level of generality, but cites no legal authority suggesting that these rights compel the specific and extraordinary relief requested here. The Fifth and Sixth Amendment rights on which Mr. Rivera relies are quintessentially trial rights, and he cites no authority for his novel suggestion that they extend to create a constitutional pretrial right to fully investigate a case. Additionally, and most relevantly, he offers absolutely no authority in support of the creation of the extraordinary constitutional right to a tê te-à-tê te witness interview involving the defendant and the putative witness.
Moreover, even in proper context, Mr. Rivera has not shown that the government is " substantially interfering" with his right to present a defense by refusing to allow him to meet face-to-face with Mr. Santiago. There is no evidence here that any government actor has " actively discourage[d] [Mr. Santiago] from testifying ...