Just four days after McAllen’s three U.S. district judges jointly issued a special order delaying all federal jury trials through July 3, the two sides in the Weslaco water plant bribery trial — slated to begin jury selection July 7 — have reversed course and asked to delay those proceedings until at least November.
The news came via a motion for continuance submitted jointly by the prosecution and defense on Friday — just two weeks after the two sides filed a motion requesting a status conference where they hoped U.S. District Judge Micaela Alvarez would outline her strategies for holding a trial amidst an ongoing pandemic.
“(T)he parties are also keenly aware of the limitations that the pandemic has placed upon judicial proceedings,” reads the motion filed by federal prosecutors on May 22, who added that both they and the defense have continued to prepare for a July trial date, despite the logistical limitations imposed by COVID-19.
“The Government has consulted with counsel for Defendants, who also do not anticipate filing motions for continuance and have also expressed concern regarding the issues previously discussed,” the motion further reads.
But it’s that same continued public health threat from COVID-19, as well as the district judges’ own special orders to close the federal courthouse, allow for time-sensitive hearings to take place via video and phone conference, and temporarily shuttering jury trials that prosecutors now cite in their request to postpone the trial until Nov. 9, at the earliest.
“The present health risks posed by a criminal jury trial warrant a continuance of the trial date and exclusion of all time until the trial date from Speedy Trial calculation under the ends-of-justice provision,” the June 5 motion reads.
The Speedy Trial Act of 1974 guarantees a defendant’s right to have their case brought before a jury within 70 days of an indictment. The act does allow for some exceptions to delay proceedings, including if such a delay would serve the ends of justice because “taking such action (would) outweigh the best interest of the public and the defendant in a speedy trial.”
Alvarez has already granted one significant extension of time in the case when she declared it “complex” last May due to the volume of evidence involved.
In their motion to further delay the trial, prosecutors lay out a seemingly insurmountable list of logistical hurdles that would need to be overcome in order to move forward with a July trial date.
Chief among them are the sheer number of people who would be required to participate. Aside from court staff, law enforcement officers, defendants, attorneys and the jury, the government says it expects to call at least 15 witnesses and present evidence over the course of five full days of testimony.
Some of those individuals are at higher risk of complications from COVID-19, and the government worries the pandemic would interfere with the ability to seat a representative jury pool.
“It will be almost impossible for jurors—including jurors in high risk groups—to maintain adequate social distance during jury selection, trial, and deliberations,” the motion reads.
But pandemic logistical concerns aside, this case was already facing a problem meeting its July 7 deadline to commence jury selection thanks to concerns raised by one defendant and his attorney.
Daniel J. Garcia, a Rio Grande City lawyer whom prosecutors allege used his attorney trust bank account to obfuscate bribes as legitimate financial transactions, has long refuted the government’s allegations of his involvement in the conspiracy.
Indeed, Garcia has minimal mention in the 34-page superseding indictment, which outlines a combined 74 counts against Garcia and two other men: former Hidalgo County Precinct 1 Commissioner Arturo “A.C.” Cuellar and Weslaco businessman Ricardo “Rick” Quintanilla.
The trio are accused of profiting off the $38.5 million rehabilitation of the Weslaco water plant as part of a conspiracy that involved laundering money through shell consulting firms and pay-for-play voting by Weslaco elected officials in approving contracts with at least three construction firms.
All three have pleaded not guilty.
A fourth man named in the indictment — former District 2 Weslaco City Commissioner John Cuellar — changed his plea to guilty last August after reaching an agreement with prosecutors.
However, it’s not the indictment which has concerned Garcia and defense attorney Clay Conrad in recent months. Instead, it’s the government’s evidence — or lack of it, they say — regarding Garcia’s alleged involvement in the scheme.
In a case where Assistant U.S. Attorney Roberto “Bobby” Lopez Jr. has referred to the amount of evidence as “voluminous,” and where even the judge has remarked on the staggering amount of material for attorneys to sift through, Garcia, through motions filed by Conrad, argues he has been inadequately able to prepare for trial because prosecutors have failed to turn over the entirety of the evidence due the defense as part of the judge’s discovery orders.
And of the evidence that has been turned over, “less than 1%” pertains to Garcia, Conrad alleges.
In a document filed by Conrad Friday, the attorney alleges prosecutors turned over one batch of evidence as recently as June 1. To bolster his claims of numerous delays by the government in completing discovery, Conrad attached a 13-page long exhibit — a log outlining the timeline of when prosecutors have turned evidence over to the defense.
Conrad filed the document in response to an order from Alvarez threatening to sanction the attorney and asking him to explain why he filed nearly a dozen separate requests of the government and the court after the deadline for filing motions had lapsed.
Just hours after he filed his response to Alvarez, the document was removed from public view on the federal courts’ online interface system, PACER (Public Access to Court Electronic Records).
But the document — and in particular, the discovery log — provides a rare look at the inner workings of the slow-moving case.
Conrad alleges the government’s discovery so far has not just been untimely, but incomplete when files have been turned over. “(Conrad) was presented with a group of disks, numbered 1-125, with at least 25 of those disks missing and, on inquiry made at that time, still unaccounted for,” the response reads.
It’s one of several examples the attorney provides of duplicated, missing or incomplete evidence turned over in large data dumps he all but says are meant to purposely hinder his ability to mount a defense for his client. “The government is apparently following the pattern of certain civil litigators of providing a haystack of irrelevant materials, with the occasional needle buried within,” the response reads.
“To make things even more inscrutable, the government claims that many of these are copies of electronic evidence that have been previously provided ‘for our convenience,’” the document reads.
In a footnote to that sentence, Conrad writes: “For the record, sifting through a terabyte of duplicates in an attempt to identify the few relevant new documents concealed within the duplicates cannot, with a straight face, be described in any way as ‘convenient.’”
The discovery log Conrad provides along with his response lists four dates on which the government turned over batches of evidence.
The first — on April 24 of last year, just weeks after the superseding indictment was unsealed — is by far the largest, and takes up almost nine full pages of the 13-page log.
It includes references to items previously discussed either in open court or in publicly available documents: various city of Weslaco records, including meeting agenda packets and minutes dating as far back as 2005, bank and phone records, business contracts, and the like.
The next batch of evidence came on Aug. 6, 2019, followed by a third on Jan. 16 of this year, and a fourth on May 13, according to the log.
Conrad says the May 13 “discovery dump” alone involved “nearly a terabyte of materials,” which the government has had in its possession for at least two years.
An additional batch of evidence was handed over June 1, after Conrad had requested the discovery log.
The meticulously ordered log also includes mention of records not normally viewable by the public, including an expansive list of subpoenas issued by the grand jury, and a list of witnesses who testified before the grand jury — some of whom the knowledge of their testimony there had already entered the public sphere, such as former Weslaco City Commissioner David Fox, but also many whose involvement had previously remained unknown.
Grand jury proceedings are conducted in secret and records of their actions are normally sealed for the protection of witnesses, defendants and those who were the focus of a grand jury investigation, but for whom no charges were ultimately levied.
The two sides are next set to appear in court for a status conference on June 16.