United States v. Harmon (871 F. Supp. 2d 1125, 2012)

MEMORANDUM OPINION AND ORDER

JAMES BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant’s Motion to Reconsider or Rehear, filed July 15, 2011 (Doc. 72) (“Motion to Reconsider”); (ii) the Defendant’s Motion by Way of the Defendant for Withdrawal of Plea Agreement filed on May 20, 2011, filed September 21, 2011 (Doc. 87) (“Motion to Withdraw Plea”); and (iii) the Defendant’s Supplemental Motion to Withdraw Plea and to Re-Open Suppression Proceeding, filed December 22, 2011 (Doc. 102) (“Supplemental Motion”). The Court held a hearing on March 9, 2012. The primary issues are: (i) whether the Court should reconsider its Memorandum Opinion and Order, filed June 6, 2011 (Doc. 61) (“MOO”), denying the Defendant’s Motion to Suppress and Memorandum in Support Thereof, filed January 14, 2011 (Doc. 40) (“Motion to Suppress”); (ii) whether Plaintiff United States of America had an obligation to disclose, before the suppression hearing on March 28, 2011, evidence Defendant Michael Harmon has recently obtained that he alleges undermines New Mexico Department of Public Safety Motor Transportation Division Officer Hermilo Lucero’s credibility; (in) whether that evidence impacts Lucero’s credibility; (iv) whether the Court should reopen the suppression hearing; and (v) whether the Court should permit Harmon to withdraw from his guilty plea. The Court will deny all of Harmon’s motions. The Court does not believe the evidence upon which Harmon relies to challenge Lucero’s credibility would serve as impeachment evidence such that the Court should reopen the suppression hearing or reconsider its decision to deny his Motion to Suppress. Because the evidence is not exculpatory and has no impeachment value, the United States had no obligation to disclose the evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Even if the evidence is impeachment evidence, Brady v. Maryland did not require the United States to disclose this evidence to Harmon before his suppression hearing or before he entered his guilty plea. Rule 16 of the Federal Rules of Criminal Procedure also did not require disclosure of this evidence, because it was not material to Harmon’s defense. Consequently, there is no sound basis for the Court to reconsider its MOO denying the Motion to Suppress. Given that the Court 'will not reconsider its MOO denying the Motion to Suppress, and that the Court sees no other fair or just reason that would permit Harmon to withdraw from his guilty plea, the Court will not permit him to withdraw his guilty plea.

FACTUAL BACKGROUND

Harmon’s argument relies upon some alleged misconduct in which Lucero engaged during the investigation of another ease, United States v. Sheridan, No. CR 10-0333. The Court has a limited amount of evidence from that proceeding, specifically a transcript of the traffic stop that occurred in that proceeding. See Transcript of Traffic Stop at 17:1-2 (dated March 18, 2010), filed July 15, 2011 (Doc. 72-1). The Court does not have the video recording from United States v. Sheridan, or any reports or affidavits, generated during the investigation of that case.

At the beginning of the transcript, Lucero related: “Pm going to be on a traffic stop here off of Exit 117 on the frontage road. It looks like a vehicle might be lost here. Unknown 49. I’m checking on it. A Lincoln Navigator, silver in color.” Transcript of Traffic Stop at 2:1-5. The transcript contains a notation that there was a “[d]og barking throughout [the] recording.” Transcript of Traffic Stop at 2:7. Lucero then began speaking to the driver, John Sheridan, in the next portion of the transcript, asking the driver if he is “all right.” Transcript of Traffic Stop at 2:8-9 (“Are you all right? Are you all right?”). The transcript indicates that Sheridan stopped his vehicle on his own because he intended to take “a leak real quick.” Transcript of Traffic Stop at 2:10-11. Lucero then stated: “Well, that’s why I was checking on you. I didn’t know what was going on.” Transcript of Traffic Stop at 2:12-13. Sheridan said that everything is fine, and Lucero then asked for his driver’s license. See Transcript of Traffic Stop at 2:17-20 (“Okay. Let me get a driver’s license. It kind of freaked me out. I was like what the — what the heck is this guy doing? Where are you heading?”). Lucero determined that Sheridan was in a rental car and had come from San Francisco, California. See Transcript of Traffic Stop at 2:22-3:7. Lucero states, shortly after asking for Sheridan’s license, that he was “just doing a welfare check making sure you were all right,” because the area where the vehicle was stopped was “normally not for commuter traffic.” Transcript of Traffic Stop at 3:12-14.

Lucero then patted down Sheridan to look for weapons. See Transcript of Traffic Stop at 3:24-4:2. Lucero determined that Sheridan had recently flown to San Francisco and was now driving back to Albuquerque, New Mexico; Lucero then asked why Sheridan was traveling in this manner. See Transcript of Traffic Stop at 4:18-5:12. Sheridan explained that he was planning on taking a vacation, but stated that his girlfriend in Albuquerque was sick and that they have rare birds — specifically parrots — that required some attention. See Transcript of Traffic Stop at 4:20-5:7. As Sheridan was about to leave, Lucero inquired whether he could ask Sheridan more questions, and Sheridan responded that he was in a hurry and could not answer more questions. See Transcript of Traffic Stop at 6:11-14. Lucero then stated that he was confused about Sheridan’s travel plans, and asked him to explain when he left San Francisco and how long he was there. See Transcript of Traffic Stop at 6:15-7:2. Sheridan asserted that he stayed in San Francisco for a day until he heard that his girlfriend was sick and then left later in the day, on a Thursday. See Transcript of Traffic Stop at 6:23-7. Sheridan related that he planned on staying in San Francisco until Monday, that he has relatives in San Francisco, and that he used to live there. See Transcript of Traffic Stop at 7:24-8:4. Sheridan represented that his girlfriend did not join him on the trip to San Francisco, because she is in medical school. See Transcript of Traffic Stop at 8:5-8. Sheridan stated that his girlfriend’s illness made her bedridden and that she could not feed the rare birds. See Transcript of Traffic Stop at 9:5-11.

After talking with Sheridan, Lucero asked permission to search the vehicle on the basis that Lucero suspected that narcotics were present; Sheridan initially refused to give permission, because he was in a hurry. See Transcript of Traffic Stop at 9:23-10:4. Lucero said that he understood, but stated that he felt that “everything you’re telling me, to be honest with you, I think is a bunch of crap because you should have just flown back to Albuquerque” rather than make an automobile trip in the manner Sheridan explained. Transcript of Traffic Stop at 10:7-10. Sheridan said that there were no flights available until Monday. See Transcript of Traffic Stop at 10:14-15. Lucero stated that he “still [thought] there’s some type of criminal activity” occurring, and then asked again if he could search the vehicle. See Transcript of Traffic Stop at 10:16-21. The transcript indicates that several statements that Sheridan made are inaudible, but he appears to have generally refused consent to search the vehicle before eventually permitting Lucero’s dog to sniff the vehicle for narcotics. See Transcript of Traffic Stop at 10:20-14:6 (“Let him take a look.”). Lucero told Sheridan that he is not under arrest, but then relates that his dog “alert[ed] to the presence of some illegal — odor of illegal narcotic.” Transcript of Traffic Stop at 14:20-25. Sheridan and Lucero then argued about the accuracy of the dog alerting to drugs being in the vehicle. See Transcript of Traffic Stop at 15:1-14. Lucero told Sheridan that he is not free to leave until Lucero can confirm or dispel whether there are drugs in the vehicle. See Transcript of Traffic Stop at 15:11-14. Lucero then related that some delay will occur, because he needed to wait for another officer to conduct a full search. See Transcript of Traffic Stop at 16:2-9. After Lucero returned to his dispatch radio, he stated the following:

Rick? It’s, Mary 118. Hey, do I have another unit heading this way or- — who is it? Oh, okay. A Laguna unit is going to be here? Yeah, I — the reason being is this is — this is — don’t put in the CA, but this is a — a whisper stop from DEA and you guys gave me the rule (inaudible) telling me and I can’t really search without somebody else here and — all right. Thanks.

Transcript of Traffic Stop at 16:23-17:5.

PROCEDURAL BACKGROUND

The Court will briefly recount the arguments made to suppress the evidence in the United States v. Sheridan case. It is necessary to do so to properly decide the issues Harmon raises in his motions. The Court will then recount the procedural history of this case.

1. Suppression Proceedings in United States v. Sheridan.

In that case, Sheridan filed a motion to suppress the evidence obtained during a traffic stop. See United States v. Sheridan, No. CR 10-0333 JC, Defendant’s Motion to Suppress and Memorandum in Support Thereof at 1, filed March 18, 2010 (Doc. 26) (D.N.M.) (“Sheridan Motion to Suppress”). The Sheridan Motion to Suppress attaches a partial transcript that transcribes the audio portion of the video footage of the traffic stop in that case, but attaches no other pertinent exhibits, such as a police report. See Sheridan Motion to Suppress at 1. Harmon has provided the Court with the transcript from that proceeding only and has not provided the Court with any audio or video footage. Sheridan argued that there was no reasonable suspicion to stop his car as he traveled on a public thoroughfare in New Mexico on the basis that the purported “welfare check” in which Lucero engaged was “perjuriously false.” Sheridan Motion to Suppress at 1. Sheridan challenged the accuracy of the statements in Lucero’s report that he “engaged his emergency equipment and performed a “welfare check’ of the vehicle.” Sheridan Motion to Suppress at 1-2. Harmon has not provided a copy of Lucero’s report. The Sheridan Motion to Suppress also refers to an affidavit from Task Force Officer Gloria Marcott that allegedly contained Lucero’s allegedly false statements that he relayed to Marcott. See Sheridan Motion to Suppress at 1-2. Harmon has not provided a copy of this affidavit.

In United States v. Sheridan, the United States filed its United States’ Response to Defendant’s Motion to Suppress (Doc. 26) and Motion to Provide Discovery on April 1, 2010. See United States v. Sheridan, No. CR 10-0333 JC (Doc. 34) (“Sheridan Response”). The United States re-, sponded that Sheridan was engaged in a search for a specific vehicle, specifically Sheridan’s vehicle, based on information received from the DEA. See Sheridan Response at 1-2. The United States related that the DEA had “information provided from a proven-reliable confidential source” that informed them “that an individual named John Sheridan,” whose “physical description” was available to Lucero, “was traveling along eastbound Interstate 40, driving a rented Lincoln Navigator” and carrying narcotics. Sheridan Response at 2. The United States represented that there was not information available regarding the color of the car or the State in which it was registered. See Sheridan Response at 2. The United States reported that Lucero spent “approximately 30 minutes” looking for the vehicle unsuccessfully. Sheridan Response at 2. The United States noted that, “[a]fter his unsuccessful search for Sheridan’s vehicle, Officer Lucero resumed traffic enforcement” when he saw two separate vehicles, one of which appeared to be speeding. Sheridan Response at 2. The United States asserted that Lucero then “made a u-turn and attempted to follow both vehicles which he believed had exited at Exit 117,” at which time “Lucero then observed a vehicle that appeared to be lost by the State of New Mexico Department of Transportation (NM DOT) Building.” Sheridan Response at 2-3. The United States related that “[t]he vehicle appeared to be parked or disabled as it was in the middle of the roadway,” causing Lucero to engage “his emergency equipment and perform[ ] a ‘welfare check’ on the vehicle.” Sheridan Response at 3. The United States represented that “[t]he vehicle was a Lincoln Navigator and displayed a California license plate (KVK299),” and was a rental car. Sheridan Response at 3. The United States noted that, while Lucero was talking with Sheridan and then received his identification and rental car agreement, Lucero then “realized that he had stumbled upon the person” for which he had earlier been searching. Sheridan Response at 3. The United States asserted that, “to keep the information provided by DEA confidential, Officer Lucero decided to treat the interaction with Sheridan consistent with his normal interactions with the motoring public.” Sheridan Response at 3.

The Court notes that the Honorable John Edwards Conway, United States District Judge for the United States District Court for the District of New Mexico, never ruled on the motion to suppress filed in No. CR 10-0333, because Sheridan withdrew his motion to suppress. See United States v. Sheridan, No. CR 10-0333, Notice of Withdrawal of Motion to Suppress [Doc. 26], filed March 24, 2010 (D.N.M.) (Doc. 50).

2. Procedural History in This Proceeding.

■ On June 10, 2010, a grand jury returned an Indictment charging Harmon: (i) in Count I, with possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and (ii) in Count II, with possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). On January 14, 2011, Harmon filed his Motion to Suppress. See Doc. 40. In the Motion to Suppress, he asked the Court to enter an order suppressing the evidence of alleged contraband discovered in the spare tire of the vehicle Harmon was driving on May 14, 2010. See Motion to Suppress at 1. On May 6, 2011, 785 F.Supp.2d 1146 (D.N.M.2011), the Court issued its MOO denying the Motion to Suppress. See Doc 61. The Court made the following holdings: (i) Harmon had standing to challenge the search of the vehicle he was driving; (ii) Lucero initiated a legal stop of Harmon based on Lucero’s reasonable suspicion that Harmon had violated a New Mexico traffic regulation; (iii) Lucero did not stop Harmon because of his race; (iv) even if one of Lucero’s motives in stopping Harmon was Harmon’s race, the stop was still objectively reasonable under the Fourth Amendment to the United States Constitution, and suppression of evidence is not an appropriate remedy for a violation of the Equal Protection Clause; (v) Harmon voluntarily consented to a search of his vehicle; and (vi) Lucero’s search did not exceed the scope of Harmon’s consent, because Lucero had probable cause to search the spare tire on the vehicle. See MOO at 1-2.

Harmon, pursuant to a Plea Agreement, filed May 20, 2011 (Doc. 68), pled guilty to Count I of the Indictment charging him with a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), that being possession with intent to distribute 500 grams and more of cocaine. The Plea Agreement states that Harmon understood and agreed to waive the following, rights: (i) not to plead guilty; (ii) to have a trial by jury; (iii) to confront and cross-examine adverse witnesses at trial; (iv) to be protected from compelled self-incrimination at trial; (v) to testify and present evidence on his behalf at trial; and (vi) to compel the attendance of witnesses for his defense at trial. See Plea Agreement ¶¶ 2-3, at 1-2. The Plea Agreement stipulates to a sentence of 60-months imprisonment. See Plea Agreement ¶ 5, at 2. Harmon reserved his right to appeal the Court’s MOO denying his Motion to Suppress. See Plea Agreement ¶ 11, at 6-7. Harmon agreed to waive his right to appeal “his conviction and imposition of the sentence” to which the parties had agreed and to waive his right to raise a “collateral attack to his conviction pursuant to 28 U.S.C. § 2255, except on the issue of counsel’s ineffective assistance in negotiating or entering this plea or this waiver.” Plea Agreement ¶ 10, at 6.

Harmon entered his guilty plea on May 20, 2011, before the Honorable Lorenzo F. Garcia, United States Magistrate Judge. Before accepting the guilty plea, Judge Garcia noted that the Plea Agreement contained a reservation of Harmon’s right to appeal the Court’s MOO denying his Motion to Suppress, and Harmon acknowledged that he wished to preserve this right. See Transcript of Plea Hearing at 3:23-4:3 (taken May 20, 2011), filed January 13, 2012 (Doc. 105) (Judge Garcia) (“May 20, 2011 Tr.”). Judge Garcia informed Harmon that he was under oath and that any false statements he made could be used in a perjury prosecution. See May 20, 2011 Tr. at 4:19-22 (Judge Garcia). Judge Garcia then inquired about Harmon’s age and education level. See May 20, 2011 Tr. at 4:25-5:13 (Judge Garcia, Harmon). Judge Garcia asked if Harmon had even been treated for or suffered from a mental illness, mental disorder, or mental disability. See May 20, 2011 Tr. at 5:14-16 (Judge Garcia). Harmon stated that he has suffered from bipolar disorder and post-traumatic stress disorder, which he asserted are related to his service in the military. See May 20, 2011 Tr. at 5:17-23 (Harmon, Judge Garcia). Judge Garcia asked Harmon if he takes any medication for his bipolar disorder or his post-traumatic stress disorder, and Harmon asserted that he is on medication. See May 20, 2011 Tr. at 6:3-5 (Judge Garcia, Harmon). Judge Garcia asked Harmon if that medication adversely affects his cognitive abilities, and Harmon asserted that it was not affecting his abilities at the time of the plea colloquy. See May 20, 2011 Tr. at 6:6-13 (Judge Garcia, Harmon). Judge Garcia asked Harmon if he had sufficient time to consult with his attorney about the decision to plead guilty, and Harmon asserted that he received sufficient time. See May 20, 2011 Tr. at 6:23-7:1 (Court, Harmon). Harmon stated that he had reviewed the Plea Agreement carefully with his attorney. See May 20, 2011 Tr. at 7:2-15 (Judge Garcia, Harmon). Harmon asserted that he understood the Plea Agreement. See May 20, 2011 Tr. at 7:19-8:1 (Judge Garcia, Harmon).

Judge Garcia then asked Harmon whether he had reviewed the Indictment with either his current attorney or prior counsel, and Harmon asserted that he had reviewed the Indictment with one of his former attorneys and asserted that he understood the charge to which he was pleading guilty — Count I. See May 20, 2011 Tr. at 8:2-9:17 (Judge Garcia, Harmon). Harmon stated that his attorney had discussed with him that the United States would need to present evidence before he could be convicted on Count I and that his attorney had discussed with him what legal defenses would be available. See May 20, 2011 Tr. at 9:18-24 (Judge Garcia, Harmon). Harmon stated that he was satisfied with the services and investigation of the charge that his attorneys had conducted. See May 20, 2011 Tr. at 10:2— 15 (Judge Garcia, Harmon). Harmon stated that he had no complaints about the services his attorneys had provided to him. See May 20, 2011 Tr. at 10:16-18 (Judge Garcia, Harmon). Harmon noted that he had read the Plea Agreement in its entirety before signing the agreement. See May 20, 2011 Tr. at 10:19-21 (Judge Garcia, Harmon). He stated that the Plea Agreement represented the entirety of his agreement with the United States, and that no one had many any additional promises or assurances to him beyond those contained in the Plea Agreement. See May 20, 2011 Tr. at 10:22-11:4. (Judge Garcia, Harmon). Harmon acknowledged that he understood that the Court is not bound to accept the Plea Agreement and that he could withdraw his plea of guilty and proceed to trial if that event occurred. See May 20, 2011 Tr. at 11:5-17 (Judge Garcia, Harmon). Harmon asserted that no one had threatened or forced him into pleading guilty, and that he was pleading guilty of his own free will because he is guilty. See May 20, 2011 Tr. at 12:2-7 (Judge Garcia, Harmon). Harmon acknowledged that he was pleading guilty to a felony offense that carried a minimum term of five-years imprisonment and a maximum term of forty-years imprisonment. See May 20, 2011 Tr. at 12:9-13:1 (Judge Garcia, Harmon).

Harmon acknowledged that he was, by pleading guilty, waiving the following rights: (i) the right to be presumed innocent; (ii) the right to remain silent; (iii) the right to a trial; (iv) the right to confront his accusers; (v) the right to have the United States prove its case against him beyond a reasonable doubt; (vi) the right to a jury determination of certain factors that can impact his sentence; and (vii) certain aspects of his right to appeal or collaterally attack his conviction and/or sentence as stated in the Plea Agreement. See May 20, 2011 Tr. at 14:18-15:13 (Judge Garcia, Harmon). Harmon acknowledged that the United States would be able to prove beyond a reasonable doubt his factual admissions in the Plea Agreement. See May 20, 2011 Tr. at 15:14-16:1 (Judge Garcia, Harmon). Harmon then pled guilty to Count I and admitted that he committed the acts charged in Count I. See May 20, 2011 Tr. at 15:2-9 (Judge Garcia, Harmon). Judge Garcia then found Harmon to be: (i) fully competent and capable of entering into an informed plea; (ii) aware of the charges and of the consequences of the plea; and (iii) knowingly, willingly, and voluntarily entering his plea. See May 20, 2011 Tr. at 16:10-17 (Judge Garcia). Judge Garcia also found that there was an independent factual basis for the plea. See May 20, 2011 Tr. at 16:17-18 (Judge Garcia). Judge Garcia then accepted Harmon’s guilty plea to Count I. See May 20, 2011 Tr. at 16:19-21 (Judge Garcia). Harmon stated that he understood everything that had been discussed during the plea colloquy. See May 20, 2011 Tr. at 17:11-13 (Judge Garcia, Harmon).

On July 15, 2011, Harmon filed his Motion to Reconsider. See Doc. 72. He argues that the Court should reconsider its MOO denying his Motion to Suppress “and/or reexamine the transcript of the” March 28, 2011 hearing to determine Lucero’s credibility. Motion to Reconsider at 1. He asserts that the United States failed to disclose, before his suppression hearing, impeachment material that would have impeached Lucero. See Motion to Reconsider at 1-2. He asserts that, based on an excerpt from a transcript from another proceeding, “it is apparent that Hermilio Lucero is directing the dispatcher not to place certain information on the” computer aided dispatch (“CAD”). Motion to Reconsider at 2. Harmon argues that “such actions are patently an attempt by Hermilio Lucero to conceal or otherwise stymie discoverable and relevant information.” Motion to Reconsider at 2. Harmon asserts that “such actions” that occurred on a prior occasion “are peculiarly and specifically germane to this Matter in that there was an issue here wherein the reliability of the CADS was brought into question by Hermilio Lucero, himself.” Motion to Reconsider at 3. Harmon contends that “attempts to conceal relevant information are evidence of dishonest behavior and, when the entirety of the grounds for stopping the Defendant relies on the credibility of Hermilio Lucero, it would behoove the Court to, at a minimum, reexamine the transcript” of the March 28, 2011 hearing “so as to reconsider its ruling and possibly to permit reopening testimony.” Motion to Reconsider at 3.

On August 1, 2011, the United States filed its United States’ Response to Defendant’s Motion to Reconsider or Rehear. See Doc. 73 (“Response to Motion to Reconsider”). The United States notes that “Harmon’s motion is based on the contents of a transcript of a recording made during a welfare check conducted by Officer Hermilio Lucero on the driver of a vehicle in the completely unrelated case of United States v. Sheridan, Cr. No. 10-333 JEC.” Response to Motion to Reconsider at 1. The United States recounts that, “[d]uring that encounter, which occurred nearly four months prior to the events in this case, Officer Lucero told dispatch, ‘... this is — this is — don’t put in the CAD, but this is a — whisper stop from DEA....’ ” Response to Motion to Reconsider at 1-2 (quoting Transcript of Traffic Stop at 17:1-2). The United States asserts that it had no obligation to produce this evidence to Harmon under rule 16 of the Federal Rules of Criminal Procedure or under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), because there is no obligation to disclose impeachment evidence before a defendant enters a guilty plea or before a hearing on a motion to suppress but rather only before trial. See Response to Motion to Reconsider at 2-3 & n. 2. It also asserts that “whether the Sheridan information should have been provided to Harmon by the government has no bearing on Harmon’s motion, for he is now in possession of the information and the court has the discretion to reopen the suppression hearing.” Response to Motion to Reconsider at 3. It contends that “the pertinent question is simply whether this court should exercise its discretion to reconsider its order denying Harmon’s motion to suppress or reopen the hearing on the motion.” Response to Motion to Reconsider at 3. It argues that “[t]he court should not do so.” Response to Motion to Reconsider at 3.

The United States asserts that the new information does not alter the reliability of the CAD report, given that Lucero, at the suppression hearing: (i) “noted that, in the past, he has given verbal warnings in similar situations where it is a recently purchased vehicle and the driver has the certificate of title”; and (ii) “testified that it was possible the license plate was incorrectly typed into the CAD system by dispatch.” Response to Motion to Reconsider at 4. It argues that this new information “has no relevance to either of those scenarios” in light of Harmon’s argument “in support of his claim of racial profiling that Officer Lucero terminated the stop of the vehicle with a verbal warning after he saw Harmon, an African-American, drive past.” Response to Motion to Reconsider at 4. The United States contends that “Harmon has failed to show that Officer Lucero’s request in the Sheridan case was improper,” given that “[h]e cites to no manual or guidelines detailing what information must be entered into CAD, or proscribing what Officer Lucero requested.” Response to Motion to Reconsider at 4. Quoting a case from the United States District Court for the Southern District of Indiana, the United States describes the process of determining what appears in a CAD report:

Neither the audio record nor the CAD report constitutes a complete historical record of an event. The audio record does not include information entered by officers in their [mobile data units]. The CAD report does not include every radio communication, but only those the dispatcher chooses to include in the report. Likewise, the CAD report may not include information an officer enters into his or her [mobile data unit] because the officer has discretion in determining whether to include the information in the CAD report.

Response to Motion to Reconsider at 5 (emphasis omitted) (quoting United States v. Cannon, No. 05-52-CR-01-T/F, 2006 WL 3206267, at *1 (S.D.Ind. Apr. 7, 2006)). The United States argues that, “[g]iven that an officer apparently has discretion in determining whether to include information in a CAD report, there is nothing inherently inappropriate about an officer choosing not to include information in CADs that could compromise an ongoing investigation.” Response to Motion to Reconsider at 5. It asserts that, “[i]n the Sheridan case, Officer Lucero did not ask that inaccurate information be put into CAD,” but rather “simply made a request to exclude information from CAD in order to protect the integrity of an ongoing investigation.” Response to Motion to Reconsider at 5-6.

On September 21, 2011, Harmon, filing the motion pro se, filed his Motion to Withdraw Plea. See Doc. 87. He argues that the evidence he has discovered about Lucero’s credibility justifies the Court permitting him to withdraw his guilty plea. See Motion to Withdraw Plea at 1. He asserts that “a guilty plea may be withdrawn when exculpatory evidence becomes available, after signing, but before sentencing.” Motion to Withdraw Plea at 1.

On December 22, 2011, Harmon filed his Supplemental Motion providing additional reasons for withdrawal of his guilty plea. See Doc. 102. He notes that he has learned, following his guilty plea, that “Lucero had a traffic-stop credibility issue that the government did not disclose to him,” specifically that “four months earlier the officer manipulated the recording of one of his traffic stops.” Supplemental Motion at 2. Harmon asserts that he “has contended throughout these proceedings that the reasons given by Officer Lucero for the traffic stop were pretextual and that Officer Lucero went on to search his vehicle without reasonable suspicion or probable cause.” Supplemental Motion at 2. Harmon contends that a variety of matters decided at the suppression hearing were dependent on Lucero’s credibility, including: (i) “his premature curtailment of a prior traffic stop and his first view of Defendant”; (ii) “his observation of the vehicle driven by Defendant”; (iii) “his purported reason for stopping Defendant and the location of the claimed infraction that he gave as the basis for the stop”; (iv) “the overall circumstances of the area and stop in the construction zone”; (v) “his questions and statements to Defendant and Defendant’s and his responses to each other”; (vi) “his insistently purposeful placement of Defendant at a place that was two hundred feet ... away from the vehicle, and out of view of his search of the vehicle”; (vii) “the part played by [Lucero’s] dog”; and (viii) “his search of the vehicle.” Supplemental Motion at 3^4. Harmon argues that, given his “lack of knowledge of the Lucero credibility issue,” his “testimonial decisions” at the suppression hearing would have been different, including “that he would have testified that Lucero twice pulled alongside his vehicle and looked at him before dropping back and continuing to follow him.” Supplemental Motion at 4 n. 5 (citing Affidavit of Michael Harmon, filed December 22, 2011 (Doc. 102-1) (“Harmon Aff.”)). Harmon asserts that the United States had an obligation to disclose this evidence to him before the suppression hearing. See Supplemental Motion at 5-7. He notes that the Court found Lucero credible in its MOO. See Supplemental Motion at 8 (citing MOO ¶¶ 42-43, at 7).

On January 23, 2012, the United States filed its United States’ Response to Defendant’s Supplemental Motion to Withdraw Plea and to Re-Open Suppression Proceeding. See Doc. 109 (“Response to Supplemental Motion”). It represents that Judge Garcia conducted a thorough plea colloquy with Harmon. See Response to Supplemental Motion at 2. The United States asserts that Harmon cannot meet his burden to show a fair and just reason for withdrawal of his guilty plea under the seven applicable factors outlined in United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir.2007). See Response to Supplemental Motion at 3. As to the first four factors, it notes that: (i) Harmon has not asserted his innocence; (ii) “the government would suffer the prejudice inherent in prosecuting any case that is over a year and a half old”; (in) there was a three-month delay between Harmon filing his Motion to Withdraw Plea and his guilty plea; and (iv) there will be some inconvenience to the Court based on the guilty plea withdrawal. Response to Supplemental Motion at 3^4. As to the factor regarding assistance of counsel, the United States notes that counsel represented Harmon when he negotiated the plea agreement and that Harmon has asserted in a eonclusory manner that his counsel was ineffective in negotiating the plea agreement. See Response to Supplemental Motion at 4-5. As to the sixth factor, the United States notes that Harmon “does not specifically assert that his guilty plea was not knowing and voluntary.” Response to Supplemental Motion at 5-6. It notes that “if the Court had denied the motion to suppress” even if Harmon had the evidence from the United States v. Sheridan case, “Harmon would have been in exactly the same position he was in when he decided to plead guilty.” Response to Supplemental Motion at 5-6. As to the seventh factor, the United States asserts that “Harmon’s request to withdraw his plea is based solely on his inability to have used the Sheridan information in support of his motion suppress” and that this matter “can be adequately addressed” by the Court reconsidering its MOO denying the Motion to Suppress without wasting additional judicial resources. Response to Supplemental Motion at 6.

On February 8, 2012, Harmon filed his Reply to United States Government’ Response to Supplemental Motion to Withdraw Plea and to Re-Open Suppression Proceeding. See Doc. 110 (“Reply”). Harmon contends that, based on a submission to Judge Conway in the United States v. Sheridan case, Lucero related to another officer that the defendant’s vehicle “appeared to be lost or attempting to turn around and parked in the middle of the roadway,” and that Lucero “engaged his emergency equipment and performed a ‘welfare check’ of the vehicle.” Reply at 2. Harmon asserts that the Transcript of Traffic Stop reveals that “Lucero knew these representations to be false, that he falsified his report, that he misrepresented information to” another officer, “and that he knowingly allowed” the other officer “to swear to a false affidavit presented to the Court.” Reply at 2. Harmon asserts that the video footage connected with the stop in United States v. Sheridan undercuts Lucero’s assertions of what occurred at the incident. See Reply at 3. Harmon asserts that he has shown a fair and just reason for withdrawal of his guilty plea. See Reply at 4-5. He argues that the seven factors the United States has listed are not exclusive, and that he discovered this information regarding the United States v. Sheridan case in a delayed manner and then timely filed his requests to withdraw his plea. See Reply at 5-6. He asserts that the United States had an obligation to disclose this evidence based on the short amount of time before trial. See Reply at 7-8.

At the hearing on March 9, 2012, Harmon stated that one of the central things the Court must consider is whether the United States should have provided the impeachment evidence at issue to Harmon before his guilty plea and the suppression hearing. See Transcript of Hearing at 3:8-19 (taken March 9, 2012) (“Mar. 9, 2012 Tr.”) (Walz). He asserted that, if the Court decides to reopen the suppression hearing and to reconsider its decision on the suppression issue, it would necessarily follow that he should have the opportunity to withdraw his guilty plea. See Mar. 9, 2012 Tr. at 6:3-10 (Walz). Harmon argued that the notion of fundamental fairness requires that the United States should have disclosed this information before the suppression hearing given how specifically it applies to Lucero’s credibility. See Mar. 9, 2012 Tr. at 7:10-19 (Walz). The Court inquired whether Harmon would want to refrain from withdrawing from his Plea Agreement in case the Court decided not to change its ruling on the suppression issue, and Harmon asserted that he would prefer that the Court first rule on the suppression issues and then rule on the Motion to Withdraw Plea. See Mar. 9, 2012 Tr. at 10:2-19 (Court, Walz). The United States responded that Harmon has presented no direct evidence that Lucero made any false statements or acted improperly in the investigation leading up to the case of United States v. Sheridan. See Mar. 9, 2012 Tr. at 16:17-25 (Braun). The United States also emphasized that the United States v. Sheridan case has no relation to this one. See Mar. 9, 2012 Tr. at 16:21-25 (Braun).

The Court asked for clarification on what a whisper stop is. See Mar. 9, 2012 Tr. at 17:1 (Court). The United States related that a whisper stop arises from a situation where the United States Drug Enforcement Administration (“DEA”) receives information from some source that a certain vehicle has narcotics in it or some other form of contraband, and relates that information to another law enforcement agency. Mar. 9, 2012 Tr. at 17:2-8 (Braun). The DEA then tells that law enforcement agency to develop its own proper basis to stop the vehicle and see if it can attempt to access the drugs in the vehicle. See Mar. 9, 2012 Tr. at 17:2-11 (Braun). The United States asserted that there is nothing inappropriate about this practice. See Mar. 9, 2012 Tr. at 17:11-12 (Braun). The United States emphasized that courts do not consider the subjective intent of law enforcement officers for Fourth Amendment purposes. See Mar. 9, 2012 Tr. at 17:12-22 (Braun). The United States did not concede that the evidence at issue is impeachment evidence, but emphasized that the evidence is at best impeachment evidence, because it is not exculpatory in that it shows his innocence of the charged crime. See Mar. 9, 2012 Tr. at 17:18-18:16 (Braun). The United States contended that Harmon has the burden to show that the evidence is impeachment evidence and that he has failed to do so here. See Mar. 9, 2012 Tr. at 18:17-22 (Braun). The United States asserted that Harmon cannot show that this conduct was a prior act of dishonesty so that he can use the evidence to impeach Lucero under rule 608(b) of the Federal Rules of Evidence. See Mar. 9, 2012 Tr. at 19:11-24 (Braun). The United States represented that, if the Court reopens the suppression hearing, it should do so only for the limited purpose of evaluating this evidence from United States v. Sheridan. See Mar. 9, 2012 Tr. at 20:22-21:2 (Braun). The United States noted that, unless the Court revisits its suppression ruling, there is no basis to support withdrawal of Harmon’s guilty plea. See Mar. 9, 2012 Tr. at 21:2-11 (Braun). Harmon acknowledged that there is no reason to doubt the accuracy of the transcript from United States v. Sheridan. See Mar. 9, 2012 Tr. at 24:9-24:16 (Court, Walz). The Court inquired what the purpose of holding an additional hearing would be when it has a transcript available to it. See Mar. 9, 2012 Tr. at 24:17-20 (Court). Harmon asserted that having an opportunity to cross-examine Lucero would help flesh out what occurred and would place on the record what the definition of a whisper stop is. See Mar. 9, 2012 Tr. at 24:21-25:9 (Walz). The United States noted that there is no judicial finding that Lucero ever made a false statement as part of the investigation in United States v. Sheridan and no other basis for that conclusion. See Mar. 9, 2012 Tr. at 26:11-16 (Braun). The United States asserted that the question is whether that statement is sufficiently dishonest to justify reopening the suppression hearing. See Mar. 9, 2012 Tr. at 26:17-23 (Braun).

RELEVANT LAW REGARDING MOTIONS TO RECONSIDER

“The Federal Rules of Criminal Procedure do not expressly recognize a motion to reconsider.” United States v. Christy, 810 F.Supp.2d 1219, 1249 (D.N.M.2011) (Browning, J.). Accord United States v. Rollins, 607 F.3d 500, 502 (7th Cir.2010) (“None of the Rules of Criminal Procedure authorizes a generic motion to reconsider; the criminal rules lack a counterpart to the motions authorized by Fed. R.Civ.P. 50(b), 52(b), or 59, though they do authorize some post-trial motions ... that have features in common with motions under the civil rules.”). In the criminal context, however, courts ordinarily apply the same standards as those used in civil cases when addressing motions to reconsider. See United States v. Rollins, 607 F.3d at 502 (citing United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964); United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976); United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991)) (stating that the Supreme Court of the United States has “concluded that motions to reconsider in criminal prosecutions are proper and will be treated just like motions in civil suits”); United States v. Wilson, No. 08-cr-263-KHV, 2011 WL 1706890, at *1 (D.Colo. May 5, 2011) (stating that, in the context of criminal cases, courts ordinarily apply the same standard for a motion to reconsider as the standard they use in civil cases); United States v. Matlack, No. 09-cr-531-WYD, 2010 WL 2682110, at *1 (D.Colo. July 1, 2010) (stating that other district courts in the Tenth Circuit have relied on the standards for evaluating a motion to reconsider in the civil context when address motions to reconsider in the criminal context), disapproved on other grounds by United States v. Games-Perez, 667 F.3d 1136, 1141 (10th Cir.2012); United States v. West, No. 01-40122-01-SAC, 2002 WL 1334870, at *1 (D.Kan. May 9, 2002) (“Rarely do parties in criminal proceedings file motions to reconsider rulings on pretrial motions. This court believes that the standards for evaluating a motion to reconsider in the civil context are relevant for evaluating a motion to reconsider in a criminal case.”); United States v. D’Armond, 80 F.Supp.2d 1157, 1170 (D.Kan.1999) (“This court believes that the standards for evaluating a motion to reconsider in the civil context are relevant for evaluating a motion to reconsider in a criminal case.”).

It is within a court’s discretion to grant or to deny a motion to reconsider. See United States v. Wiseman, 172 F.3d 1196, 1207-08 (10th Cir.1999). “A motion under Rule 59(e) is warranted when: (1) there has been an intervening change in the controlling law; (2) there is newly discovered evidence which was previously unavailable; or (3) it is necessary to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). “Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law.” Servants of Paraclete v. Does, 204 F.3d at 1012 (citation omitted). A district court has considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997). A motion to reconsider is not an opportunity to rehash arguments previously addressed or to advance new arguments that could have been raised in prior briefing. See Servants of the Paraclete v. Does, 204 F.3d at 1012 (“It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” (citation omitted)).

Notably, neither rule 59 nor rule 60 of the Federal Rules of Civil Procedure apply to interlocutory orders a district court reconsiders before entry of final judgment. Rule 59(e) states: “A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e) (emphasis added). Accord Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991) (“In this case, plaintiffs’ motion to reconsider was not served within ten days of the district court’s judgment.”); 12 J. Moore, Moore’s Federal Practice § 59.11[l][a], at 59-26 (3d ed. 2011) (“A motion for a new trial must be filed no later than 28 days after the entry of judgment, regardless of when or whether the parties received notice of the entry of the judgment.” (citations omitted)). As the note to the 1946 amendment to rule 60 emphasizes in a discussion of the choice to add the word “final” within rule 60(b):

The addition of the qualifying word “final” emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.

Fed.R.Civ.P. 60 note to 1946 amendment. Accord 12 J. Moore, supra § 60.23, at 60-82 (“Rule 60(b) does not govern relief from interlocutory orders, that is to say any orders in which there is something left for the court to decide after issuing the order.”); 11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2852, at 233 (2d ed. 1995) (“Thus, the power of a court to modify an interlocutory judgment or order at any time prior to final judgment remains unchanged and is not limited by the provisions of Rule 60(b).”). The United States Court of Appeals for the Tenth Circuit has recognized that a district court has broad discretion to reconsider its interlocutory rulings before the entry of judgment. See Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir.2011) (“[District courts generally remain free to reconsider their earlier interlocutory orders.”). That discretion extends to rulings on partial summary judgment motions. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223-24 n. 2 (10th Cir.2008) (“The District Court’s partial summary judgment ruling was not a final judgment. Thus, Ms. Fye’s motion for reconsideration is considered an ‘interlocutory motion invoking the district court’s general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.’ ”).

LAW REGARDING REOPENING SUPPRESSION HEARINGS

“A ruling on whether to reopen a suppression hearing is governed by principles of jurisprudence that relate to reopening proceedings, generally.” United States v. Carter, 374 F.3d 399, 405 (6th Cir.2004), vacated on other grounds sub nom. Carter v. United States, 543 U.S. 1111, 125 S.Ct. 1056, 160 L.Ed.2d 1045 (2005). “The decision to reopen a suppression hearing is within the sound discretion of the trial court and is reviewed for abuse of discretion.” United States v. Wiseman, 172 F.3d 1196, 1207-08 (10th Cir.1999). “Generally, a court should be reluctant to reopen a case, and that principle has been applied to suppression hearings.” United States v. White, 455 Fed.Appx. 647, 650 (6th Cir.2012) (citing United States v. Blankenship, 775 F.2d 735, 740 (6th Cir.1985)). Relevant factors for a court to consider are “the timeliness of the motion, the character of the testimony, the effect of granting the motion, and whether the opposing party will be prejudiced by reopening the hearing.” United States v. White, 455 Fed.Appx. at 650.

The United States Court of Appeals for the Fifth Circuit has stated: “While the district court has wide discretion in determining when to reopen an evidentiary hearing, it abuses its discretion where the new evidence creates a genuine factual dispute on an outcome determinative fact.” United States v. Mercadel, 75 Fed.Appx. 983, 2003 WL 21766541, at *6 (5th Cir.2003) (unpublished table decision). The Fifth Circuit further elaborated that a district court properly denied the request to reopen the suppression hearing when the district court found “that the new evidence would not effect its determination.” United States v. Mercadel, 2003 WL 21766541, at *6. The Fifth Circuit recognized that evidence would create a genuine factual dispute on an outcome determinative fact if it “significantly bolsters” a key witness’ credibility “or goes to whether [the officer] in fact had probable cause,” among other matters. United States v. Mercadel, 2003 WL 21766541, at *6. Accord United States v. Atkins, 1 F.3d 1247, 1993 WL 290157, at *2 (9th Cir.1993) (unpublished table decision) (“Because the new evidence in this case went to the heart of the magistrate judge’s credibility determination underlying the denial of Atkins’s suppression motion, the district court should have reopened to consider Weiss’s credibility in light of the newly-discovered evidence.”).

Other courts, along with the Fifth Circuit, have recognized that a district court may properly evaluate, in deciding whether to reopen the suppression hearing, the impact the new evidence would have on its decision to revisit the suppression issue:

The government properly notified Martin that, several months after the suppression hearing, the officer had been accused of sexually assaulting a person he had detained. The district court reviewed the information provided by the Atlanta Police Department (“APD”) in camera, and concluded that the allegations of sexual assault were not relevant to the court’s credibility determination because there was no indication that the officer had made a false statement. After careful review of the same APD documents considered by the district court, we conclude that the district court did not abuse its discretion in refusing to reopen the suppression hearing.

United States v. Martin, 400 Fed.Appx. 536, 537 (11th Cir.2010) (unpublished). The United States Court of Appeals for the Fourth Circuit similarly upheld a district court’s denial of a motion to reopen a suppression hearing when the new evidence would not have impacted the district court’s suppression decision:

The Defendant, Stanaus McCoy, appeals the district court’s denial of a motion to reopen a suppression hearing in light of new evidence that he claims the Government withheld in violation of Brady v. Maryland. Because McCoy cannot show that the evidence was material to the suppression hearing’s outcome, we affirm the district court’s denial of the motion to reopen the hearing and affirm McCoy’s conviction.

Defense counsel moved to reopen the suppression hearing on the grounds that [newly disclosed grand jury testimony] undermined and impeached the officer’s claim that when he told the tow-truck driver to pull over, the tow-truck driver “responded by driving away at a high rate of speed.” The district court denied the motion, because it found that even if the tow-truck driver eased away, he still drove away to elude police. The officer, therefore, would still have had reasonable suspicion to stop McCoy.

United States v. McCoy, 348 Fed.Appx. 900, 901-02 (4th Cir.2009) (per curiam) (unpublished).

In the context of alleged violations of Brady v. Maryland and reopening suppression hearings, the Fourth Circuit has stated that the defendant must establish that a violation of Brady v. Maryland occurred to show that the district court abused its discretion. See United States v. McCoy, 348 Fed.Appx. 900, 902 (4th Cir.2009) (unpublished) (“To show that the district court abused its discretion when it refused to reopen the suppression hearing, McCoy must establish that the Government violated Brady by withholding the tow-truck driver’s testimony.”). The United States Court of Appeals for the Second Circuit similarly stated, in the context of alleged violations of Brady v. Maryland, that the district court did not err in denying a motion to reopen the suppression hearing when there was no violation of Brady v. Maryland:

Nosworthy’s Rule 33 motion claimed that this testimony — which his attorney discovered online after the trial — constituted newly discovered evidence and that the government’s failure to disclose it earlier in the proceedings violated its obligations under Brady v. Maryland; the Jencks Act; and Federal Rule of Criminal Procedure 26.2. Nosworthy accordingly asked the district court to re-open his suppression hearing and hold a new trial. The court denied Nos-worthy’s motion, holding that Nosworthy had not proven a violation of Brady, the Jencks Act, or Rule 26.2, and that the Esterine testimony did not constitute newly discovered evidence for purposes of Rule 33.

Second, the district court correctly found that the government was not required to turn over the [United States u] Esterine[, No. 07-CR-258, 2007 WL 3274887 (E.D.N.Y. Nov. 5, 2007) ] testimony under Brady. For the failure to disclose evidence to be a Brady violation, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the [prosecution], either willfully or inadvertently; and prejudice must have ensued.” We agree with the district court that the Esterine testimony was neither exculpatory nor impeaching. It concerned a wholly unrelated criminal arrest, and the magistrate judge in Esterine had specifically found the officers’ testimony credible.

United States v. Nosworthy, No. 11-2888-cr, 2012 WL 1193715, at *4 (2d Cir. Apr. 11, 2012) (unpublished) (alterations in original) (citations omitted).

LAW REGARDING THE UNITED STATES’ DUTY TO DISCLOSE IN CRIMINAL CASES

During a criminal prosecution, the Federal Rules of Criminal Procedure and the United States Constitution impose upon the United States an obligation to disclose certain evidence to a criminal defendant. Rule 16 of the Federal Rules of Criminal Procedure is one source that imposes such a duty on the United States. The Due Process Clause of the United States Constitution is another source imposing a duty to disclose on the United States.

1. Rule 16.

Rule 16 of the Federal Rules of Criminal Procedure provides:

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

(hi) the item was obtained from or belongs to the defendant.

Fed.R.Grim.P. 16(a)(1)(E).

Criminal defendants may not, however, embark on a “broad or blind fishing expedition among documents possessed by the Government.” Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) (quoting Gordon v. United States, 344 U.S. 414, 419, 73 S.Ct. 369, 97 L.Ed. 447 (1953)). Rule 16(a)(2) provides, in part, that rule 16 “does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R.Crim.P. 16(a)(2). The Supreme Court has interpreted the term “defense” in this statute as referring to “an argument in response to the prosecution’s chase in chief.” United States v. Armstrong, 517 U.S. 456, 462, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (“We reject this argument, because we conclude that in the context of Rule 16 ‘the defendant’s defense’ means the defendant’s response to the Government’s case in chief.”).

2. Due Process Clause.

“The Due Process Clause requires the United States to disclose information favorable to the accused that is material to either guilt or to punishment.” United States v. Padilla, No. 09-3598, 2011 WL 1103876, at *5 (D.N.M. Mar. 14, 2011) (Browning, J.). In Brady v. Maryland, the Supreme Court explained that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. In Giglio v. United States, the Supreme Court extended the prosecution’s disclosure obligation to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See 405 U.S. at 153, 92 S.Ct. 763; Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir.2009) (“[N]o distinction is recognized between evidence that exculpates a defendant and ‘evidence that the defense might have used to impeach the [United States’] witnesses by showing bias and interest.’ ” (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985))); United States v. Abello-Silva, 948 F.2d 1168, 1179 (10th Cir.1991) (“Impeachment evidence merits the same constitutional treatment as exculpatory evidence.”). Finally, the Supreme Court has refined Brady v. Maryland and clarified that it is not necessary that a defendant request exculpatory evidence; “regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375). See Douglas v. Workman, 560 F.3d at 1172 (“The government’s obligation to disclose exculpatory evidence does not turn on an accused’s request.”); United States v. Summers, 414 F.3d 1287, 1304 (10th Cir.2005) (“[T]he prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request.”). “[T]he Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information.” United States v. Ashley, 274 Fed.Appx. 693, 697 (10th Cir.2008). See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (“It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.”).

a. Timing of the Disclosure.

The obligation of the prosecution to disclose evidence under Brady v. Maryland can vary depending on the phase of the criminal proceedings and the evidence at issue. As a general matter, “[s]ome limitation on disclosure delay is necessary to protect the principles articulated in Brady v. Maryland.” United States v. Burke, 571 F.3d 1048, 1054 (10th Cir.2009). The Tenth Circuit has recognized that “[i]t would eviscerate the purpose of the Brady rule and encourage gamesmanship were we to allow the government to postpone disclosures to the last minute, during trial.” United States v. Burke, 571 F.3d at 1054. “[T]he belated disclosure of impeachment or exculpatory information favorable to the accused violates due process when an ‘earlier disclosure would have created a reasonable doubt of guilt.’ ” United States v. Burke, 571 F.3d at 1054. As the Tenth Circuit has stated:

Where the district court concludes that the government was dilatory in its compliance with Brady, to the prejudice of the defendant, the district court has discretion to determine an appropriate remedy, whether it be exclusion of the witness, limitations on the scope of permitted testimony, instructions to the jury, or even mistrial.

United States v. Burke, 571 F.3d at 1054. Notably, “not every delay in disclosure of Brady material is necessarily prejudicial to the defense.” United States v. Burke, 571 F.3d at 1056. “To justify imposition of a remedy, the defense must articulate to the district court the reasons why the delay should be regarded as materially prejudicial.” United States v. Burke, 571 F.3d at 1056. Courts should, “[w]hen assessing the materiality of Giglio information, ... consider the significance of the suppressed evidence in relation to the entire record.” United States v. Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir.1998).

When a prosecutor’s obligations under Brady v. Maryland are triggered, however, they “eontinue[ ] throughout the judicial process.” Douglas v. Workman, 560 F.3d at 1173. For instance, the obligation to disclose material under Brady v. Maryland can arise during trial. See United St