United States District Court, D. New Mexico
C. Anderson United States Attorney Norman Cairns Samuel A.
Hurtado Assistant United States Attorneys United States
Attorney's Office Albuquerque, New Mexico Attorneys for
Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
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.
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 -- shall serve as the Court's
essential findings for rule 12(d) purposes.
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.”).
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.”).
CI first spoke with Leal on May 5, 2016, over the telephone.
See Day 2 Tr. at 107:5-9 (Hurtado, CI).
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).
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).
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).
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
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).
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).
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).
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).
June 8, 2016, Leal was incarcerated, and he called the CI
from jail. See Day 2 Tr. at 155:13-16 (Hurtado, CI).
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).
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).
Apodaca had given B. Tapia the green light to sell drugs to
the CI. See Day 2 Tr. at 181:4-9 (Bowles, CI).
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.
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).
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).
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
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”).
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.
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.
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
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.
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).
Leal gave the CI Casillas' telephone number. See
Response at 4; Motion In Limine at 15.
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).
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
July 22, 2016, a woman named Erika Barraza texted the CI.
See Response at 4; Motion In Limine at 16.
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.
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).
Leal told the CI that he had been having trouble reaching the
CI. See Response at 4; Motion In Limine at 16.
Leal turned the telephone over to Arreola-Palma. See
Response at 4; Motion In Limine at 16.
Arreola-Palma told the CI to contact his cousin, Daniel
Carmona, because Carmona could sell the CI an ounce of
methamphetamine. See ...