Federal prosecutors claim the attorneys representing a former Republican campaign staffer accused of intercepting Gov. Susana Martinez’s personal emails are conducting a “wholesale fishing expedition” for evidence unconnected to their case.
Assistant US Attorneys Fred Federici and Jeremy Pena say in new court filings that they believe Jamie Estrada’s defense team is implementing a strategy of “gotcha” with them.
The prosecutors insist they are following federal rules of evidence and disclosing more than they are required to under the criminal code. And, in a written response to a defense motion filed by defense attorneys Zachary Ives and Molly Schmidt-Norwara earlier this month, prosecutors say the FBI’s case was not botched or sloppy as the defense suggests.
Prosecutors assigned to the Estrada case insist their only focus is prosecuting his alleged conduct—not the controversial Albuquerque Downs’ racino lease.
Estrada, prosecutors contend, hasn’t established a connection between his case and possible bid rigging at Expo New Mexico. Now, they want Federal District Judge William P Johnson to deny a defense motion to compel them to share additional evidence with Estrada’s legal team.
Instead, prosecutors say Estrada’s team wants “to disparage or casually wave aside the privacy rights of the individuals he violated.”
“This suggests that he may somehow try to claim that he had a lawful right to spy on other people by reading emails that neither the senders or recipients ever intended for him to receive, or even knew that he had,” they write.
Prosecutors have always argued Estrada was not an “intended party to the emails he intercepted.”
“The defense fails to explain why defendant Estrada believed he was entitled to snoop through Governor Martinez’s very private emails about the underwear she wears…or why he somehow thought it was fair game for him to intercept private emails about another staffer’s bank balance,” they write.
For the first time publicly, the prosecutors have expressed apprehension that Ives and Schmidt-Nowara “intend to turn Estrada’s trial into a sideshow of political grandstanding and mudslinging in an effort to inflame, distract or confuse the jury about his factual guilt or innocence.”
They don’t want that strategy to encourage jury nullification.
Estrada’s attorney’s declined to talk with SFR about the prosecutors’ response to their motion, but have hinted about the political implications of Estrada’s upcoming trail.
In their March 7 motion, Estrada’s team claims the case is “about enormous political and personal consequences for some of the most powerful and influential people in our state, including Governor Susana Martinez who is seeking reelection and who appears to aspire to obtain an elected position at the national level.”
But prosecutors say that strategy is designed to divert attention from Estrada’s own charges.
“Estrada seems to obsess over the idea that Governor Martinez must have reported his crimes to federal authorities in order to divert attention from alleged racino improprieties and to make him her ‘chosen scapegoat,’” reads their court filing.
Calling it “an imaginary scenario,” prosecutors dispute Estrada’s inferences that Gov. Martinez, “may be attempting to curry favor with the government in the hopes of obtaining a favorable outcome in the racino investigation.”
Federico and Pena insist they made the decision to prosecute, not the governor.
“While a victim of a crime has certain rights, the decisions of whether or not to prosecute, which charges to pursue and the manner of resolution of a criminal case rest exclusively with the United States Attorney. Governor Martinez has no control over that process, and any insinuation to the contrary is false,” write the prosecutors.
They believe Estrada’s hypothesis that “the suspected corruption surrounding the racino contract is the subject of open state and federal criminal investigations” is nothing more than a “figurative smoke bomb” designed to confuse a jury.
The only issues prosecutors want the Estrada’s jury to consider is his guilt or innocence in illegally intercepting emails and Estrada’s alleged false statements to FBI agents.
“It will not be the jury’s job to put anyone else, including the victim, on trial,” write Federico and Pena.
In order to convict him the jury “would have to believe that he did not have lawful access to the Domain,” write prosecutors.
They point to Watergate and the kidnapping of Charles Lindberg’s baby as examples of keeping the trial focused on Estrada’s charges.
“Indeed, if during the Watergate era, an illegal wiretap had picked up some political ‘dirt’ on the opposition party, nothing about that ‘dirt’ would have legitimized the illegal eavesdropping or magically transformed it into some sort of lawful enterprise,” write the prosecutors.
“Again, figuratively speaking, a person could email a confession to having kidnaped [stet] the Lindbergh baby – and the person who illegally intercepted that communication would still be guilty of a violation,” they add.
In fact, prosecutors don’t believe the defense team is entitled to receive any official response or confirmation one way or the other about whether FBI agents may have interviewed anyone, or what they may have said, with respect to any matter that is unrelated to Defendant Estrada’s own case.
“The convoluted twists and turns of the above dispute, which would undoubtedly entail testimony about the complexities of the state procurement system, the contract review process, the work required to be performed under the request for proposals, and the qualifications and bid details of the two competing bidders – all seasoned with a heavy dash of political bashing – are wholly unconnected to the charges against Defendant Estrada,” they write.
Nothing about the controversial Albuquerque Downs racino lease “is even remotely exculpatory as to his [Estrada’s] own criminal conduct,” write Federici and Pena.
To date, Attorney General has not brought any charges to substantiate allegations regarding the Downs, and prosecutors don’t believe Estrada has proof that the state has an “open investigation” into the two-year old allegations.
But, Estrada’s attorneys insist they are entitled to more evidence including grand jury testimony, especially testimony FBI Special Agent Michael Boady gave to original grand jurors.
Ives and Schmidt-Nowara claim Boady may have misled jurors when he testified that Estrada applied for a new GoDaddy account using a prepaid credit card and the alias Sylvia Tracori. In fact, Estrada is only accused of renewing the original campaign domain Susana2010.com
That claim, by defense attorneys, has rankled prosecutors.
“The United States is unfortunately all too familiar, however, with the tactic used by some defendants who lack a credible or persuasive defense as to the facts or the law, and who therefore resort instead to making all sorts of reckless accusations, including baseless insinuations about the integrity of government agents,” they write.
Estrada’s team also wants a copy of an email written by Martinez’s political consultant Jay McCleskey warning the governor, her staffers and political advisers that their Susana2010 email accounts may have been re-directed and that they should begin using new email addresses.
Prosecutors say that request is moot. The initial grand jury transcripts, prosecutors admit, were provided to the defense only as a matter of professional courtesy in hopes of avoiding discovery issues.
“But that choice has proven to be too optimistic, as reflected by the defense bombarding the United States with a seemingly limitless number of discovery demands,” write prosecutors.
Estrada, prosecutors argue, has already been provided “a trove of information which vastly exceeds the discovery to which he is entitled under the Constitution, statutes and the Federal Rules of Criminal Procedure.”
The defense has two weeks to answer the US Attorney’s response. After reviewing the written responses, Johnson may issue a written ruling or schedule a court hearing on the issues.