United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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)
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. See (Doc. 94).
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).
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).
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
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
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.
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.
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.
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.
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, ...