SPRINGFIELD, Mass. – In drug cases, it’s not uncommon for prosecutors to rely on the testimony of witnesses who might seem unsavory to the jury, from smugglers rolling up on their superiors to users who double as informants for law enforcement agencies and jailhouse snitches looking to trim some time off their sentences.
It’s also commonplace for such witnesses to be put under a microscope by defense attorneys bent on undermining their credibility, drawing on arrest records, prior criminal convictions and any other derogatory information they can convince the court to admit into evidence.
Slightly less common is for the derogatory information about a witness in a drug case to include his alleged mobile porn-surfing habits, a circumstance playing out in Massachusetts, where Luzander Montoya is one of several defendants facing a variety of drug possession and distribution charges.
Andrew Levchuk, Montoya’s attorney, has filed a pretrial motion to compel prosecutors to investigate, and subsequently disclose, whether any of the images downloaded to Montoya’s phone constitute child pornography. In its exhibits and filings, the defense to this point has referred to the material as “teen porn.”
In the motion, the defense asserts the witness “on more than 20 occasions accessed websites containing depictions of ‘teens’ engaging in sex acts” and “the selected pages also display the cooperating witness’s use of taxpayer-provided mobile devices to feed his urge to view the most disgusting pornography available on the internet.”
Levchuk further argued the defense is “entitled to know whether the government plans to 1) treat this conduct as it should be treated, or 2) immunize the cooperating witness for potential child pornography violations and continue with its case.”
The defense motion and related scrutiny of the witness’s phone flow from Levchuk’s earlier assertion that prosecutors have been slow and less than forthright during the discovery phase. According to Levchuk, prosecutors have failed to be comprehensive in disclosing exculpatory evidence.
Naturally, the prosecutors see things a little differently, pointing to the substantial effort involved in recovering and turning over to the defense 12 gigabytes of data relating to the witness’s use of the phone. Prosecutors insist nothing has been withheld from the defense while also noting they are obligated to provide only information relevant to the case, not everything they find.
Prior filings in the case revealed the witnesses’s FBI handlers had added minutes to one of his phones and later purchased a second phone for him, which is what the defense referred to as “taxpayer-provided mobile devices.”
Prosecutors allege Montoya is part of the La Familia street gang. He was arrested in a raid conducted nearly two years ago in South Holyoke, Mass., and faces three counts of possession of heroin with intent to sell. Montoya’s trial in U.S. District Court is set to begin April 6.
While his porn viewing could lead jurors to view the as-yet-unidentified government witness as less than reputable, odds are they might not think too highly of Montoya, either, at least to the extent prosecutors are successful in entering his prior criminal record into evidence.
In addition to his arrest in the 2013 raid, Montoya was booked on kidnapping and armed robbery charges in 2009. At the time, he was on probation and awaiting trial on charges of assault and battery, malicious destruction of property and distribution of cocaine.
