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United States v. Leal

United States District Court, D. New Mexico

May 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GASPAR LEAL, Defendant.

          John C. Anderson United States Attorney Norman Cairns Samuel A. Hurtado Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Jason Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Gaspar Leal's Motion to Dismiss Count 1 -- Conspiracy for Violation of Double Jeopardy Clause, filed March 6, 2018 (Doc. 119) (“Motion”). The primary issues are: (i) whether Defendant Gaspar Leal's Double Jeopardy challenge under the Fifth Amendment of the Constitution of the United States of America to his conspiracy charge in Count I of the Superseding Indictment at 1, filed December 20, 2017 (Doc. 95)(“Superseding 3308 Indictment”), is ripe for the Court's pretrial consideration; (ii) whether, if Leal's claim is ripe, the conspiracy for which Leal was previously convicted, in United States v. Leal, No. CR 16-3069 JB (D.N.M.), is the same conspiracy for which Plaintiff United States of America now charges Leal in Count 1; and (iii) whether, if the Court dismisses the Superseding 3308 Indictment's Count 1 for violating the Double Jeopardy Clause, the Court must dismiss the Superseding 3308 Indictment's other Counts without prejudice so that the United States can present the Grand Jury with evidence that does not relate to Leal's conspiracy conviction. The Court concludes: (i) the Motion is ripe, because the Double Jeopardy Clause guarantees the right to not stand trial for an offense for which a defendant has already been convicted; (ii) the Superseding 3308 Indictment does not charge Leal with a conspiracy for which he has already been convicted, because the Superseding 3308 Indictment and the United States v. Leal, No. CR 16-3069 JB (D.N.M.)'s indictment charge conspiracies with different sets of co-conspirators whose actions are not interdependent; and (iii) even if the Court dismisses Count 1 for violating the Double Jeopardy Clause, it would not dismiss the Superseding 3308 Indictment's remaining Counts without prejudice, because Leal has not shown that presenting the Grand Jury with Count 1 evidence is sufficient reason to dismiss the entire Superseding 3308 Indictment. Accordingly, the Court denies the Motion.

         FACTUAL BACKGROUND

         Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d)(“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order -- based on the parties' pleadings, the indictments, and other records[1] -- shall serve as the Court's essential findings for rule 12(d) purposes.

         1. In the spring of 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) used a confidential informant (“CI”) to find people in Albuquerque, New Mexico, with whom to make drug deals. See United States v. Gaspar Leal, CR No. 16-3069 Trial Transcript at 63:22-24 (taken May 4, 2017)(Bowles, Gettler), filed January 17, 2018 (Doc. 192)(“Day 1 Tr.”).

         2. Sometime before May 5, 2016, Leal gave an undercover ATF agent a flyer for Leal's haircut business, and the ATF agent gave the CI Leal's telephone number and told him to call him. See Day 1 Tr. at 32:16-19 (Gettler); United States v. Gaspar Leal, CR No. 16-3069 Trial Transcript at 107:18-25 (taken May 5, 2017)(CI), filed January 17, 2018 (Doc. 193)(“Day 2 Tr.”).

         3. The CI first spoke with Leal on May 5, 2016, over the telephone. See Day 2 Tr. at 107:5-9 (Hurtado, CI).

         4. The CI called Leal and made an appointment for a haircut at Leal's house. See Day 1 Tr. at 44:19-45:2 (Hurtado, Gettler); Day 2 Tr. at 108:16-109:2 (Hurtado, CI).

         5. The CI went to Leal's home on May 7, 2016, and told Leal that he was in Albuquerque to make money buying and selling narcotics. See Dec. Tr. at 109:19-21 (CI). The CI told Leal that he was interested in buying “an ounce or two” of methamphetamine or cocaine. Day 2 Tr. at 118:13-21 (Hurtado, CI).

         6. On May 9, 2016, Leal called the CI and said that Leal had a friend named Pete who could sell methamphetamine to the CI. See Day 1 Tr. at 50:6-16 (Hurtado, Gettler); Day 2 Tr. at 122:23-123:2 (Hurtado, CI).

         7. Leal gave Pete the CI's phone number, and Pete called the CI to arrange a deal. See Day 2 Tr. at 126:126:4-11 (Hurtado, CI).

         8. The CI met Pete on May 10, 2016, hoping to purchase an ounce or two of methamphetamine, but Pete did not have that much methamphetamine and could sell the CI only 3.5 grams. See Day 2 Tr. at 126:19-127:5 (Hurtado, CI).

         9. On May 12, 2016, the CI told Leal that he was disappointed in the amount of methamphetamine Pete sold him, and Leal agreed to sell the CI some of his -- Leal's -- drugs. See Day 2 Tr. at 141:18-24 (Hurtado, CI).

         10. The CI went to Leal's apartment, where Leal sold the CI $40.00 worth of heroin and $30.00 worth of methamphetamine. See Day 2 Tr. at 149:8-20 (Hurtado, CI).

         11. Leal also tried to call other drug dealers to arrange a bigger deal for the CI, but was unsuccessful. See Day 1 Tr. 105:23-24:10 (Hurtado, Gettler).

         12. On June 8, 2016, Leal was incarcerated, and he called the CI from jail. See Day 2 Tr. at 155:13-16 (Hurtado, CI).

         13. Leal gave the CI a telephone number for Bernadette Tapia, who, Leal indicated through coded language, could sell the CI drugs. See Day 2 Tr. at 155:21-156:1 (Hurtado, CI).

         14. B. Tapia's husband, Christopher Apodaca, was in jail with Leal and gave Leal B. Tapia's telephone number. See Day 2 Tr. at 63:3-10 (Bowles, Gettler).

         15. Apodaca had given B. Tapia the green light to sell drugs to the CI. See Day 2 Tr. at 181:4-9 (Bowles, CI).

         16. The CI believed that Leal contacted B. Tapia and vouched for the CI, because, when he spoke to B. Tapia, she knew who he was. See Day 2 Tr. at 162:2-16.

         17. Late on June 8, 2016, the CI and an undercover ATF agent met with B. Tapia and her daughter, Candace Tapia, and ultimately purchased two ounces of methamphetamine. See Day 2 Tr. at 14:14-23:17 (Hurtado, Gettler); id. at 28:23-32:2 (Hurtado, Gettler).

         18. For arranging the deal, Leal expected $60.00 to be deposited into his commissary account, which the ATF did on June 9, 2016. See Day 2 Tr. at 98:8-19 (Dimas, Hurtado).

         19. Leal also expected to receive a third of an ounce of methamphetamine in compensation for arranging the deal, see Day 2 Tr. at 18:2-6 (Hurtado, Gettler), but the record does not reveal whether he ever received that methamphetamine.

         20. On July 12, 2016, a Grand Jury returned an Indictment with two counts against Leal relating to the methamphetamine transaction with B. Tapia and C. Tapia. See United States v. Leal, CR. No. 16-3069, Indictment at 1, filed July 12, 2016 (Doc. 2)(“3069 Indictment”).

         21. The 3069 Indictment's Count I charges Leal and co-Defendants Bernadette. Tapia, Brandon Candelaria, and Candace Tapia with conspiracy, contrary to 21 U.S.C. § 846, to distribute 50 grams and more of methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). See 3069 Indictment at 1.

         22. The 3069 Indictment's Count II charges Leal, B. Tapia, Candelaria, and C. Tapia with distributing 50 grams and more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. See 3069 Indictment at 1.

         23. According to the 3069 Indictment, Leal conspired to distribute and distributed methamphetamine on or about June 8, 2016. See 3069 Indictment at 1; id. at 2.

         24. In July, 2016, Leal was incarcerated at the Central New Mexico Correctional Facility. See United States' Response to Defendant's Motion to Dismiss Count 1 of the Superseding Indictment at 4, filed March 20, 2018 (Doc. 121)(“Response”).

         25. On July 21, 2016, Leal called the CI from prison and told the CI to contact a man named Jose Casillas. See Response at 4; Government's Notice of Intent to Offer Extra-Judicial Statements, Request for a James Hearing, and Opposed Motion In Limine to Admit Other Acts Evidence Which are Admissible Under Federal Rules of Evidence 404, 403, and Which are Res Gestae Evidence at 15, filed January 3, 2018 (Doc. 104)(“Motion In Limine”); United States' Exhibits List at 1 (indicating that it intends to introduce as evidence a July 21, 2016 telephone call between the CI and Leal).

         26. Leal gave the CI Casillas' telephone number. See Response at 4; Motion In Limine at 15.

         27. The CI called Casillas and indicated that he wanted to buy methamphetamine. See Response at 4; Motion In Limine at 15-16; United States' Exhibits List at 1 (indicating that it intends to introduce evidence of a July 21, 2016 telephone call between the CI and Casillas).

         28. Casillas told the CI that he would check with an unidentified woman on methamphetamine prices and would connect the woman with the CI. See Response at 4; Motion In Limine at 15-16.

         29. On July 22, 2016, a woman named Erika Barraza texted the CI. See Response at 4; Motion In Limine at 16.

         30. On July 24, 2016, the CI called Barraza, and Barraza told the CI that her boyfriend, Luis Arreola-Palma, was in prison with Leal and that Arreola-Palma instructed her to contact the CI. See Response at 4; Motion In Limine at 16.

         31. Later on July 24, 2016, Casillas initiated a three-way telephone call to the CI. See Response at 4; Motion In Limine at 16; United States' Exhibits List at 1 (indicating it intends to introduce evidence of a July 24, 2016 telephone call between the CI, Leal, and Arreola-Palma).

         32. Leal told the CI that he had been having trouble reaching the CI. See Response at 4; Motion In Limine at 16.

         33. Leal turned the telephone over to Arreola-Palma. See Response at 4; Motion In Limine at 16.

         34. Arreola-Palma told the CI to contact his cousin, Daniel Carmona, because Carmona could sell the CI an ounce of methamphetamine. See ...


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