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United States v. Marquez

United States District Court, D. New Mexico

April 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JESSIE JESUS MARQUEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant's Objection to the Pre-Sentence Report, filed on April 17, 2016 (Doc. 494), and Addendum to Joint Motion to Continue Trial and Attendant Deadlines, filed on April 28, 2016 (Doc. 497). The Court held a Sentencing Hearing on February 15, 2017. (See Doc. 527.)

         Defendant makes two objections to the Pre-Sentence Report (PSR) and argues that his sentence was calculated in error. The primary issues are: (1) whether the jury's verdict included a finding that the overall scope of the conspiracy involved more than 500 grams of methamphetamine, and alternatively, whether the Government's evidence was sufficient to prove that Defendant was involved in a conspiracy involving more than 500 grams of methamphetamine; and (2) whether Defendant is entitled to a minor role adjustment. (See Docs. 494, 497.) Having considered the submissions of counsel and relevant law, the Court will OVERRULE Defendant's objections. The sentence imposed at the February 15, 2017 Sentencing Hearing-121 months as to Counts 1 and 13, and 48 months as to Counts 23, 30, 36, and 41-stands. (See Doc. 527; see also Sentencing Hr'g Tr.[1] at 28:3-9.)

         I. Procedural and Factual Background

         A. The Indictment

         Mr. Marquez (Defendant), one of 18 defendants charged in a 43-count Indictment, was charged with seven counts: conspiracy to distribute 500 grams and more of a mixture and substance containing methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and in violation of 21 U.S.C. § 846 (Count 1); two counts that he knowingly and intentionally possessed with intent to distribute a controlled substance, a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2 (Counts 13 and 29); and four counts that he knowingly and intentionally used a communication facility, a telephone, to further the commission of a drug trafficking crime, namely, conspiracy to possess with intent to distribute a controlled substance, contrary to 21 U.S.C. § 846 and in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2 (Counts 23, 30, 36, and 41). (See Doc. 1; see also Doc. 484 at 14-16.)

         B. The Government's Case-in-Chief

         During its case-in-chief, the Government introduced the following evidence at Defendant's trial on January 25-27, 2016. (See Docs. 491-93.)

         On the basis of information the Drug Enforcement Administration (DEA) obtained from an informant, the DEA began investigating Mr. Robert Christner (Christner) on suspicion of distributing methamphetamine in the Alamogordo, New Mexico area. (See Doc. 491 at 33:25- 34:2.) After conducting several controlled purchases of methamphetamine from Christner, the DEA learned Christner was able to obtain pound quantities of methamphetamine. (See Id. at 34:3- 5, 35:13-21.) The DEA obtained authorization for a wire-tap investigation on March 14, 2013. (Id. at 36:23-37:4.) The DEA ultimately obtained three separate authorizations to intercept seven different phone lines belonging to Christner and other individuals who the DEA had reason to believe were involved in obtaining and distributing methamphetamine. (See Id. at 37:5-21.)

         One of these seven phone lines-Target Telephone 7-was attributed to Defendant.[2] (See Id. at 56:3-5, 88:20-89:2.) During the trial, the Government presented evidence of numerous phone calls and text messages between Defendant and Christner. Based on these communications, Agent Billhymer-the case agent for the investigation-determined that Christner was the supplier for Defendant, and Defendant was dealing methamphetamine under Christner. (Id. at 93:6-13.)

         During a March 16, 2013 telephone call, Christner inquired about methamphetamine Defendant had received from Christner. (Id. at 63:12-65:15.) Christner was concerned about the quality of the methamphetamine and told Defendant, “If it's good, let it go out. If it's not, bring it back. We can do a refund . . . .” (Id.) The two men also talked about whether it was “fire, ” which, Agent Billhymer testified that in her experience was in reference to the quality of the methamphetamine. (Id. at 64:21-65:9.) Finally, Christner told Defendant he planned to see his “uncle” on Monday, which is the term Christner used to mean his source of supply. (Id. at 65:14- 23.)

         On March 18, 2013, the agents intercepted a call between Christner and a second person, who Agent Billhymer determined was probably Christner's source of supply. (Id. at 66:6-67:1.) During this call, the agents learned that Christner “planned to meet someone named Michelle in Willcox that following Wednesday, ” March 20, 2013. (Id. at 67:1-5.) On March 19, 2013, agents intercepted a phone call between Defendant and Christner, in which Christner said “whatever you got would come in handy.” (Id. at 67:16-68:2.) Agent Billhymer testified that from this phone call, she believed Christner was asking Defendant to contribute money so that Christner could buy a quantity of methamphetamine on Wednesday from his source of supply. (Id. at 67:23-68:8, 93:9- 13.) Later that day, agents intercepted a telephone call that led them to believe the two set up a meeting to exchange money as agreed on earlier. (Id. at 69:19-70:15.) No agents were able to conduct surveillance of this meeting, however. (Id. at 70:16-71:6.)

         On the morning of March 20, 2013, agents intercepted a telephone call between Christner and the person believed to be the courier he was meeting that day. (Id. at 73:11-18.) During this call, the two confirmed the meeting time, the courier said that she had “two” with her, and they discussed “that other stuff, the stuff [he] had to undo . . . .” (Id. at 73:22-74:4.) Agent Billhymer's understanding about the meaning of “the stuff [he] had to undo” referred to complaints Christner had been getting from his dealers, who had been having a hard time selling the previous shipment of methamphetamine. (Id. at 74:3-17.) Later that morning, agents intercepted a call between Christner and his source of supply, who told Christner that he was sending “three full ones, two oranges and eight grapes” with a courier, Ms. Michelle Casillas; Christner responded that he had “16” with him. (Id. at 76: 2- 14.) Agent Billhymer testified that the agents understood “three full ones, two oranges, eight grapes” to mean a little over three pounds of methamphetamine, and “16” meant money. (Id. at 76:14-21.)

         Based on information obtained from the investigation, DEA agents had a description for the vehicle the courier would be driving. (Id. at 75:16-23.) The DEA communicated this information to officers in Arizona, and Trooper Keith Duckett with the Arizona Highway Patrol located Ms. Casillas's vehicle on the morning of March 20, 2013. (Id. at 76:22-25, 97:17-98:2.) Officer Duckett stopped Ms. Casillas, performed a search of her vehicle pursuant to the traffic stop, and recovered approximately three pounds (1, 401 grams) of methamphetamine from the vehicle. (Id. at 78:7-16, 79:24-80:17, 99:10-100:24, 119:18-120:1.)

         There were also DEA agents following Christner and two other individuals out of Las Cruces on the morning of March 20. (Id. at 77:3-7.) The agents lost Christner for a time due to his erratic driving, but they eventually performed a traffic stop on Christner's vehicle on his way back into Las Cruces. (Id. at 77:8-78:1.) Officers searched Christner pursuant to the traffic stop and found a little more than $16, 000 in cash on his person. (Id. at 78:2-6.)

         The Government presented evidence that Christner began looking for a new source of supply after the DEA interrupted his source of supply from Arizona. (Id. at 127:14-128:10, 130:11-16.) Agent Billhymer testified that she intercepted a telephone call between Christner and Defendant on April 12, 2013, in which the two men were talking about “obtaining a ‘big one' or large quantity of methamphetamine.” (Id. at 127:14-129:12.) Through a series of telephone calls and text messages intercepted on April 12 through 17, 2013, Agent Billhymer believed that Defendant was planning on traveling with Christner and introducing him to a new potential source of supply. (Id. at 131:2-136:9.) Interceptions of a text message and telephone call on April 18, 2013, led Agent Billhymer to believe the two men had successfully met with the new source of supply on April 17. (Id. at 136:10-138:4.) Agents heard Christner tell another of his distributors that he had obtained some methamphetamine from the new potential source of supply on April 17 and was planning to meet with the new source on April 18 “to make it a relationship.” (Id. at 138:5-139:23.)

         Through text messages and calls intercepted on April 18, 2013, agents gathered evidence that Christner was planning a second trip on April 18 without Defendant, but Defendant was communicating with certain persons and sharing those conversations with Christner, “kind of giving him instructions on what to do based on the previous meets with these individuals.” (Id. at 136:10-138:4, 140:11-141:10, 141:19-143:2.) After this meeting, Christner told another of his distributors that the new source of supply “he was now working with [was] basically kind of nickel-and-diming him, only providing certain quantities of meth. He was accustomed to pound quantities and . . . he wasn't able to get pound quantities initially with these individuals . . . .” (Id. at 143:18- 145:6.)

         Christner and Defendant communicated again on April 19, 2013: Agent Billhymer testified that Defendant told Christner he was “talking to the middleman” and it was clear that Defendant was negotiating larger quantities of methamphetamine. (Id. at 145:12-146:12.) Specifically, Defendant talked about “two” and “three, ” which the agents believed meant pounds of methamphetamine. (Id. at 146:12-14.) Defendant and Christner also discussed “eight, eight to five, to nine[, ]” which the agents believed meant $8, 000, $8, 500, and $9, 000-a price per pound of methamphetamine that was consistent with the price Christner had been paying to his previous source of supply. (Id. at 146:19-147:8.) Later on April 19, Defendant and Christner spoke on the telephone again, and agents heard Defendant and Christner talk about meeting the new source to pick up “just four, 32[, ]” which agents believed meant four ounces of methamphetamine for $3, 200. (Doc. 492 at 5:24-6:17.)

         On the evening of April 19, 2013, agents intercepted a telephone call between Christner and another individual. (Id. at 8:20-21.) Christner told the individual that “his ride was there to pick him up and” Christner wanted to meet with this individual “at the Pic Quik on Telshor.” (Id. at 8:21-23.) Agents conducted surveillance of this meeting at the Pic Quik[3] and saw Christner in a gold Mitsubishi that they later discovered was registered to Defendant's mother. (Id. at 9:24- 10:5, 13:20-14:13.) Based on the agents' research, Agent Conan Becknell, who also conducted surveillance on April 19 and at one point walked within two feet of Defendant, positively identified Defendant from his driver's license photo. (Id. at 14:12-15:11, 56:11-61:2.) After Defendant and Christner left Pic Quik, they drove out of Las Cruces and exited at the Anthony exit. (Id. at 10:9- 11:12.) The agents eventually lost track of the vehicle, but later that evening, agents intercepted two telephone calls between Christner and two of his distributors, in which Christner confirmed that he picked up “groceries” (a code word for methamphetamine) and that communications with the new source of supply had gone well. (Id. at 13:4-19, 17:4-19, 19:11-21.) At this point in the investigation, Agent Billhymer understood “[t]hat Mr. Christner had found a new source of supply that he was comfortable with, that they worked out negotiating the prices and the quantities, and . . . he was letting his people know that they were back in business . . . .” (Id. at 19:22-20:7.) The agents also “heard Mr. Christner mention ‘a lot of groceries' or ‘being fat on Tuesday[, ]” which they interpreted to mean he “would be able to obtain pound quantities of methamphetamine from this unknown source.” (Id. at 20:11-18.) The DEA agents were unable to confirm this belief, because Christner changed phones, and the DEA was unable to intercept his calls and text messages for a period of time. (Id. at 20:19-21:1.)

         In June 2013, agents intercepted a number of calls between Defendant and Christner, which caused them to believe that the new source of supply Defendant helped arrange did not produce a long-term relationship, and Defendant had returned to a traditional distributor relationship with Christner. (See Id. at 73:15-74:5, 76:21-77:9, 78:12-80:8, 81:10-23, 83:13-89:23.)

         C. The Jury Instructions and the Jury's Verdict

         At the close of the Government's case on Wednesday, January 27, 2016, Defendant chose to rest without calling any witnesses. (See Doc. 493 at 13:20-24.) With the testimony concluded, the Court held a jury instructions conference with Mr. Harrison, attorney for Defendant, and Ms.

         Davenport, attorney for the United States. (Id. at 13:25-14:3.) Instruction Number 13 set out the elements of Count 1, the conspiracy charge. (See Doc. 484 at 17-18.) In relevant part, the instruction read: “To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: . . . Fifth: the overall scope of the conspiracy involved more than 500 grams of a mixture and substance containing methamphetamine.” (Id. at 17.) The related jury verdict form question number one read:

1) We, the Jury, find the Defendant, JESSIE JESUS MARQUEZ, (Guilty or Not Guilty) of Conspiracy as charged in Count 1 of the Indictment.
If you found the Defendant guilty, please answer the following question.
The overall scope of the conspiracy involved more than 500 grams of a mixture and substance containing methamphetamine.
Yes __ No ___

(Doc. 487 at 1.) Neither party objected to Instruction Number 13 or to the form of the jury verdict on Count 1 during the Court's jury instructions conference or when the parties received the final copies. (See Doc. 493 at 13:25-20:25 (discussing the parties' objections to the stock jury instructions and the jury verdict, and Mr. Harrison noting that his only objections were related to the possession counts); see also Id. at 22:15-23:25 (asking the parties if there were any objections to the final, clean copy of the jury instructions, and Mr. Harrison pointing out that the word “methamphetamine” was never used on the wires, while the word “coke” was used).

         While the jury was deliberating, the foreperson sent a note to the Court regarding question number one on the verdict form. The question read:

In deciding guilty/not guilty on Count 1, we read & understand that the amount of 500 g or more is a criteria embedded in the Indictment in Count 1 (as part and parcel of the charge), but on the verdict sheet there is a YES/NO checkoff with Count 1. Please clarify. Can we agree on ‘guilty' for Count 1 and not agree that it involved more than 500 grams? Or do we have to mark “YES” to the grams in order to find guilty on this charge?

(Doc. 485 at 5.) The Court asked counsel if they “intend[ed] the verdict form to have a step-down . . . .” (Doc. 493 at 86:13-15.) Ms. Davenport replied that they had not intended a step-down, but intended the jury to make a specific finding regarding quantity. (Id. at 86:17-19.) She thought that if the jury did not “answer the specific question about the amount, under ...


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