UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. No. 05-cr-112-01/02-JD

Carlos Soto-Garcia

Luis Ortiz-Lara

O R D E R

Pending on the docket is defendant Luis Ortiz-Lara’s motion

to dismiss the indictment (document no. 60). With this order,

the court confirms its oral decision of November 2, 2006.

Ortiz-Lara is charged in a drug conspiracy and intends to

assert a public authority defense at trial. He claims that he

participated as a confidential informant for the Drug Enforcement

Administration (“DEA”) from 2001 until July 2005, a period of

time both predating and fully encompassing the time period of the

conspiracy charged in the indictment. The government intends to

argue that, although Ortiz-Lara had been a cooperating informant

since 2001, and had signed a confidential source agreement with a

one-year term in April 2004, his DEA handler had deactivated him

in July 2004, several months before he began participating in the

charged conspiracy. 

Ortiz-Lara believes the government possesses documents

cataloguing his past participation as a confidential informant. 

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Believing that these documents would be helpful to his defense,

he requested the government to disclose “any and all information

regarding [his] past participation as a confidential informant

for the government.” He specifically requested the cell phone

records of his former handler at the DEA. The government

responded that, although it had already produced information

concerning Ortiz-Lara’s past cooperation as an informant,

including the April 2004 confidential source agreement, it would

undertake a second review of the DEA file and would produce

copies of any new discoverable information. The government

subsequently produced the requested cell phone records.

On the eve of trial, Ortiz-Lara’s co-defendant filed several

motions seeking the exclusion of government evidence. The next

day, October 17, 2006, Ortiz-Lara filed his motion to dismiss. 

The motion asserted that the government continues to withhold

exculpatory evidence in violation of Brady v. Maryland, 373 U.S.

83, 87 (1963). In lieu of jury selection, the court was forced

to hold a hearing on the motions and ultimately decided to

continue the trial of both defendants. The court instructed

counsel for Ortiz-Lara to meet with the government to work out a

mutually agreeable plan for the discovery sought. In a

subsequently filed objection to the motion to dismiss, the

government noted its willingness to stipulate to Ortiz-Lara’s

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past role as a confidential informant and that it had already

provided Ortiz-Lara with significant information concerning that

issue. The government stated, however, that it would not produce

certain documents regarding Ortiz-Lara’s historical role as a

confidential informant because such disclosure could compromise

ongoing DEA investigations.

At the November 2 hearing, counsel for Ortiz-Lara again

asserted that the government was withholding evidence vital to

his client’s defense. Specifically, he asserted that there were

additional DEA phone records that would establish Ortiz-Lara’s

contact with the DEA during the time frame of the conspiracy. 

Ortiz-Lara stated that he could provide the government with

specific phone numbers to search for. The government agreed to

search for calls to or from the DEA pertaining to the specific

numbers provided by Ortiz-Lara for the time period in dispute.

Ortiz-Lara also argued that his defense depended on his

ability to establish the level of success of his prior

participation as a confidential informant. He argued that the

DEA has reports documenting the degree of his participation and

how it lead to several successful arrests. The government agreed

to produce any agreements in its possession establishing OrtizLara’s participation as an informant from 2001 to 2004 and also

agreed to provide figures concerning how many arrests or

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investigations were aided by Ortiz-Lara. Although Ortiz-Lara

continued to argue that the DEA reports are important to

establishing the context of the relationship he had with his DEA

handler, the court concluded that the government’s proposal would

provide Ortiz-Lara with sufficient information to present the

historical background of his participation and to cross-examine

his DEA handler. The court would not permit Ortiz-Lara to

rummage through the DEA’s files simply to prove something the

government had conceded. As the court noted at the hearing, the

real focus of the case should be on the time frame of the April

2004 confidential source agreement, the period after the DEA

allegedly deactivated Ortiz-Lara in July 2005, and the period of

the alleged conspiracy, February 2005 to April 2005.

Since that hearing, Ortiz-Lara has not filed any further

motions relating to discovery. The court presumes that the

government is cooperating with Ortiz-Lara’s discovery requests

consistent with its representations at the November 2 hearing. 

Consequently, the court denies Ortiz-Lara’s motion to dismiss and

also denies his alternative request for an instruction to the

jury that the government failed to fully meet its disclosure

obligations. The trial in this case has been continued on

several occasions and the court would be loathe to grant another

continuance. Therefore, if Ortiz-Lara believes that the

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government is not cooperating as outlined above, he should make

sure he raises the issue with the court well in advance of the

February 21, 2007 trial date. 

Conclusion

Defendant Ortiz-Lara’s motion to dismiss (document no. 60)

is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 29, 2007

cc: Robert B. Carmel-Montes, Esquire

Donald A. Feith, Esquire

Michael J. Sheehan, Esquire

Brian T. Tucker, Esquire

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