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United States v. Cruz

United States District Court, D. New Mexico

April 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO YBARRA CRUZ, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Defendant's Motion for Judgment of Acquittal or, in the Alternative, for New Trial (Motion), filed March 25, 2019, and Defendant's request for an evidentiary hearing. (Doc. 101). On April 8, 2019, the United States filed its response. (Doc. 102). Having considered the Motion, the response, and relevant portions of the trial transcript, the Court denies Defendant's request for an evidentiary hearing and denies the Motion.

         As an initial matter, the Court determines that an evidentiary hearing on the Motion would not be helpful to the Court. Citations to the trial transcript and references to admitted trial exhibits are sufficient for the Court to decide the Motion. Accordingly, the Court denies Defendant's request for an evidentiary hearing. A. Motion for Judgment of Acquittal: Fed. R. Crim. P. 29(c)

         Defendant moves first for a judgment of acquittal under Rule 29(c). Defendant urges the Court to grant his Rule 29(c) motion because of lack of sufficient evidence to sustain the Count 2 conviction, possession with intent to distribute 500 grams and more of methamphetamine.[1] See (Doc. 94).

         Rule 29(c) requires the Court to "view[] all evidence and draw[] all reasonable inferences in the light most favorable to the government." United States v. Oliver, 278 F.3d 1035, 1043 (10th Cir.2001). Under this standard, the Court "will not reverse a conviction ... unless no rational trier of fact could have reached the disputed verdict." United States v. Wilson, 182 F.3d 737, 742 (10th Cir.1999). In other words,

[t]he evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury's finding of guilt beyond a reasonable doubt.

Id. To make a Rule 29(c) determination, the Court does not weigh conflicting evidence or consider the credibility of witnesses. United States v. White, 673 F.2d 299, 302 (10th Cir. 1982). If after viewing the evidence in the light most favorable to the United States, the Court finds "an equal or nearly equal theory of guilt and a theory of innocence," the Court "must reverse the conviction." United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995).

         Defendant argues that he "proved by a preponderance of the evidence that he reasonably believed he was acting as a government agent and no reasonable jury could find, beyond a reasonable doubt, that the defendant did not reasonably believe he was an authorized government agent." (Doc. 101) at 7. "hi a case involving a public authority defense, [courts] will uphold the jury verdict if a rational juror could find, beyond a reasonable doubt, that the defendant did not reasonably believe he was acting as an authorized agent of the Government." United States v. Ortega, 210 Fed.Appx. 784, 786 (10th Cir. 2006).

         It is undisputed that before March 14, 2018, Defendant had been working as an authorized confidential informant (CI). The issue under Rule 29(c) is whether a rational jury could find, beyond a reasonable doubt, that Defendant did not reasonably believe he was acting as a CI on March 24, 2018, the date of his arrest.

         Prior to March 14, 2018, Defendant showed Homeland Security and Investigations (HSI) Special Agents Eduardo Arellano and Manuel Ochoa (collectively, the Agents) paperwork indicating that he had been charged in Apache County, Arizona, on drug possession and drug paraphernalia possession charges. (Doc. 98) at 272. Defendant told the Agents that a police officer found methamphetamine in his vehicle and that the methamphetamine did not belong to him. Id. Contrary to Defendant's statement, a police report on the incident noted that the police officer found methamphetamine in Defendant's pocket and that a glass pipe fell from Defendant's pant leg. Id. at 273; (Doc. 99) at 51.

         The police report concerned the Agents because it showed that Defendant was using narcotics, conducting illegal acts, and not "being totally truthful." (Doc. 98) at 273-74. Having notified their group supervisor of the Apache County situation, the group supervisor and the Agents agreed to deactivate Defendant as a CI. (Doc. 98) at 274.

         On March 14, 2018, the Agents and Defendant met outside of the Agents' office building. (Doc. 98) at 275; (Doc. 100) at 36. The Agents told Defendant, in Spanish, that he was deactivated as a CI because of the Apache County incident and that he was "no longer working with HSI." (Doc. 98) at 275; (Doc. 99) at 65-66. The Agents told Defendant to stop working cases and to "cut ties with the targets." Id. at 276; (Doc. 99) at 75. Agent Ochoa told Defendant that "if you get caught doing something illegal, then you're on your own." (Doc. 99) at 66. The Agents also told Defendant that if he took care of the Apache County situation, he could possibly be reactivated. (Doc. 98) at 279; (Doc. 99) at 75-76. According to the Agents, Defendant appeared to understand what they told him. (Doc. 98) at 275; (Doc. 99) at 66. In fact, Defendant appeared "sad" and "nervous" at this news. (Doc. 99) at 66.

         Defendant testified that he understood that the Agents "said we're going to stop working" and that "to keep working" Defendant would have to take care of the Apache County situation. Id. at 190, 194-95. Contrary to the testimony of the Agents, Defendant testified that Agent Arellano told him to "[c]ontinue gathering information." Id. at 195.

         The Agents and the group supervisor subsequently signed a document memorializing Defendant's deactivation on March 14, 2018. (Doc. 98) at 277, Ex. 5. Defendant's Source Chronology Sheet also documented the March 14, 2018, deactivation. Id. at 277-78; Ex. 4.

         Defendant ceased communications with the Agents after March 14, 2018. (Doc. 98) at 280; (Doc. 100) at 37; Ex. 20. Defendant testified that after March 14, 2018, he did not need to text message the Agents. (Doc. 100) at 37. Defendant, ...


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