United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.
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.)
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
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.
responded that there was a person lying down in the backseat.
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