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United States v. Milne

United States District Court, D. New Mexico

October 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN LEROY MILNE and MANUEL PAVON-RODRIGUEZ, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE

         The government intends to try Defendants Manuel Pavon-Rodriguez and John Leroy Milne together for crimes involving marijuana. Presuming that Mr. Milne will not testify at trial, Mr. Pavon-Rodriguez argues that the Sixth Amendment's Confrontation Clause compels the Court to either sever the trial or exclude any reference to out-of-court statements that Mr. Milne made to law enforcement. For the reasons detailed below, the Court declines to sever the trial.

         After considering the law and the nine numbered statements detailed in the Facts section, the Court determines that Statements 1-4 and 8 will be admissible with no limiting instruction so long as those statements are not used to prove the truth of the matter asserted. Statements 5 and 6 are admissible with a proper instruction telling the jury to only consider those statements with regard to Mr. Milne. Statements 7 and 9 must be excluded unless Mr. Milne testifies at trial.

         FACTS

         Highway 80 originates in the border town of Douglas, Arizona, and runs north until it merges into Interstate 10 in New Mexico. (Doc. 72 at 2.) There are no Border Patrol checkpoints from Highway 80's origin in Douglas up to Interstate 10. (Id.) For that reason, Highway 80 is a popular route for smugglers of contraband. (Id.)

         On the morning of June 23, 2017, Matthew Defayette, an agent with the United States Border Patrol, saw a brown, four-door Ford Explorer with tinted windows heading north on Highway 80. (Id. at 3.) Agent Defayette did not recognize the Explorer as a local vehicle, nor could Agent Defayette see a license plate on the Explorer. (Id.) His interest piqued, Agent Defayette decided to follow the Explorer. (See id.)

         After about 1.5-2 miles, the Explorer pulled into the parking lot of the Rodeo Tavern in Rodeo, New Mexico. (Id.) Agent Defayette also pulled into the parking lot. (See Id. at 4.) A man, Defendant John Leroy Milne, emerged from the Explorer and approached Agent Defayette's vehicle. (See id.) Agent Defayette exited his vehicle and spoke with Mr. Milne. (See id.) A short while into their conversation, Border Patrol agents Roger Evan Jay, Jr. and Rene Rocha joined Agent Defayette and Mr. Milne. (Id. at 6.) At the end of the interaction, the Border Patrol agents arrested Mr. Milne. (Id. at 7.) They discovered that the Explorer was carrying several burlap backpacks filled with about 111.8 kilograms of marijuana. (Id.) They also discovered a man hiding in the Explorer, Defendant Manuel Pavon-Rodriguez, whom they arrested. (See id.)

         This opinion focuses on the nine statements that Mr. Milne made to the Border Patrol agents during their interaction that day:

Statement 1: Agent Defayette asked Mr. Milne if everything was okay, and Mr. Milne stated that he was okay, and that he was stopping at the Rodeo Tavern for a drink. (See Doc. 59 at 1.)
Statement 2: Agent Defayette asked Mr. Milne about his itinerary, and Mr. Milne stated that he was going from Benson, Arizona, to Phoenix, Arizona. (See id.)
Statement 3: Agent Defayette asked Mr. Milne what he was doing in the area, and Mr. Milne answered that he was looking for work. (See Id. at 2.)
Statement 4: Agent Defayette asked Mr. Milne if there was anything illegal or anyone else in the Explorer, to which Mr. Milne answered, “No.” (See id.)
Statement 5: Agent Defayette asked Mr. Milne if he had any identification, and Mr. Milne responded that he did not have identification, but that his name was “John Milne, ” with a date of birth of “September 29, 1961.” (See id.)
Statement 6: After telling Agent Jay that there was a temporary Arizona license sticker attached to the back of the Explorer, Mr. Milne said that he would retrieve the sticker for the agents. (See id.)
Statement 7: As Mr. Milne was grabbing the temporary sticker, the agents saw burlap backpacks in the cargo area of the Explorer. Asked what was in the backpacks, Mr. Milne answered, “bales.” (See id.)
Statement 8: When Agent Defayette asked Mr. Milne, “bales of what, ” Mr. Milne said that he did not know. (See id.)
Statement 9: Mr. Milne was asked again if someone else was inside the Explorer, and Mr.

         Milne responded that there was a person lying down in the backseat. (See id.)

         The government has charged both Mr. Milne and Mr. Pavon-Rodriguez with conspiracy to distribute marijuana and possession with intent to distribute marijuana. The government intends to try both defendants at a single trial. Mr. Pavon-Rodriguez protests this arrangement, pointing out that he is entitled under the Confrontation Clause of the Sixth Amendment to confront any witness who makes statements against him. (See Doc. 51 at 2.) Since the nine statements above were made by Mr. Milne, who may not testify, Mr. Pavon-Rodriguez will not be able to confront Mr. Milne about those statements. (See Doc. 51 at 1.) To vindicate ...


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