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United States v. Maley

United States District Court, D. New Mexico

December 10, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MATTHEW DUKE MALEY, Defendant/Petitioner.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant/Petitioner Matthew Duke Maley's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 290) (“Section 2255 Motion”), filed December 13, 2017. On January 2, 2018, United States District Judge Robert Brack referred the case to me pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3) and Virginia Beach Federal Savings and Loan Association v. Wood, 901 F.2d 849 (10th Cir. 1990). (Doc. 295.) Having meticulously considered the parties' submissions, the record, and the relevant law, and for the reasons set forth below, I recommend that Mr. Maley's Section 2255 Motion be DENIED.[1]

         I. Procedural History

         A grand jury charged Mr. Maley, Aubrey Savage, and Jennifer Sanders with distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2, in a two-count indictment filed in this Court on November 13, 2013. (Doc. 1.) The second count of the indictment pertained to Mr. Maley, and charged that Mr. Maley and Ms. Sanders “unlawfully, knowingly and intentionally distributed . . . 50 grams and more of methamphetamine” on August 1, 2013 in Doña Ana County, New Mexico. (Id.) On the same date the indictment was filed, the Court issued a warrant for Mr. Maley's arrest, and the United States Federal Bureau of Investigation (“FBI”) began searching for him in several states. (Doc. 163 at 51-52.)

         As described in more detail below, New Mexico and Arizona law enforcement officers tried to execute the warrant for Mr. Maley's arrest in Tucson, Arizona on November 17, 2013. Although the officers did not find Mr. Maley that day, they did observe firearms and other incriminating items in plain view in his travel trailer, which they seized and towed to the Tucson FBI office. Two days later, United States Magistrate Judge Bernardo Velasco, sitting in Tucson, issued a search warrant for the trailer. (Doc. 341-1.) In executing the search warrant, officers discovered documents and additional firearms that the Government used against Mr. Maley at trial.

         Mr. Maley was arrested in Las Cruces, New Mexico on December 4, 2013. (Doc. 165 at 200, 207, 213.) Jared Abrams and Steven Almanza entered appearances as Mr. Maley's counsel on December 6 and 19, 2013, respectively. (Docs. 6, 15.)

         On March 19, 2014, a grand jury issued a fourteen-count superseding indictment in this case. (Doc. 48.) Six counts pertained to Mr. Maley, all charging conduct in Doña Ana County, New Mexico. (Id.) Count 1 charged Mr. Maley, Ms. Savage, and Ms. Sanders with conspiring to distribute 50 grams and more of methamphetamine from about June 7, 2013 through August 21, 2013, contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C § 846. (Id. at 1-2.) Count 9 mirrored the second count of the original indictment. (Id. at 3.) Count 10 charged Mr. Maley and Ms. Sanders with distributing 50 grams and more of methamphetamine on August 21, 2013. (Id. at 4.) Count 11 charged Mr. Maley, Jose Luis Niño, and Candice Marie Carpenter with conspiring to distribute 50 grams and more of methamphetamine on or about December 4, 2013. (Id.) Count 12 charged Mr. Maley, Mr. Niño, and Ms. Carpenter with possession with intent to distribute 50 grams and more of methamphetamine on or about December 4, 2013. (Id.) Finally, Count 14 charged Mr. Maley, a convicted felon, with possession of ten listed firearms from April through August 2013, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Id. at 5-6.)

         Mr. Abrams and Mr. Almanza moved to withdraw as Mr. Maley's counsel on July 15, 2014, six days before his trial was to begin. (Docs. 83, 87.) The next day, the Court continued the trial to September 22, 2014 and allowed Mr. Maley seven days in which to secure new counsel. (Doc. 90 at 2; Doc. 112.) On September 17, 2014, noting that no new counsel had entered an appearance on Mr. Maley's behalf, the Court denied Mr. Abrams' and Mr. Almanza's motion to withdraw. (Doc. 128.) Mr. Maley then moved the Court to continue the trial again, indicating that his counsel of choice was willing to represent him at trial and intended to enter an appearance but was unavailable to try the case on September 22, 2014. (Doc. 129.) On September 19, 2014, the Court denied Mr. Maley's motion to continue. (Doc. 136.)

         Mr. Maley's trial took place from September 22, 2014 to September 25, 2014. (Doc. 141-42, 163-65, 167.) Ms. Sanders, Mr. Niño, and Ms. Carpenter, all of whom had entered into plea agreements with the Government, testified against Mr. Maley. (Doc. 164 at 128-72, 197-246; Doc. 165 at 101-40.) At the conclusion of trial, the jury found Mr. Maley guilty of the crimes charged in Counts 1, 9, 11, 12, and 14 of the superseding indictment. (Doc. 146.) The Court granted Mr. Maley's motion for a judgment of acquittal as to Count 10. (Doc. 149.)

         The Court appointed Mary Stillinger to represent Mr. Maley at sentencing and on appeal on October 27, 2014. (Doc. 154.) On January 21, 2016, the Court sentenced Mr. Maley to 262 months' imprisonment on Counts 1, 9, 11, and 12, and 120 months' imprisonment on Count 14, the terms to run concurrently for a total term of imprisonment of 262 months. (Doc. 193 at 3.) Mr. Maley appealed, arguing that the Court had deprived him of his right to be represented by his counsel of choice when it denied his September 17, 2014 request for a continuance. United States v. Maley, 681 Fed.Appx. 685, 687 (10th Cir. 2017). The Tenth Circuit rejected this argument and affirmed Mr. Maley's conviction on March 9, 2017. Id. at 688.

         Meanwhile, on April 2, 2014, a grand jury issued charges against Mr. Maley in the United States District Court for the District of Arizona. (Cr. No. 14-637, Doc. 1.) In that case, Mr. Maley was charged with one count of being a convicted felon in possession of several firearms, one count of possessing with intent to distribute less than five grams of methamphetamine, and one count of possessing several firearms in furtherance of a drug trafficking offense, all at or near Tucson, Arizona. (Id. at 1-5.) The indictment further provided for forfeiture of the listed firearms upon conviction. (Id. at 5-7.)

         On November 7, 2016, in the District of Arizona, Mr. Maley filed a motion to suppress the evidence obtained from his trailer in November 2013. (Cr. No. 14-637, Doc. 30.) United States Magistrate Judge Leslie Bowman held an evidentiary hearing on the motion on February 1 and 13, 2017, and, on March 3, 2017, issued a Report and Recommendation (“Recommendation”) in which she recommended that the motion be denied. (Cr. No. 14-637, Docs. 55, 61, 76, 78); United States v. Maley, 2017 WL 8941236, at *6 (D. Ariz. Mar. 3, 2017). Judge Bowman first concluded that officers' initial entry into Mr. Maley's trailer violated the Fourth Amendment because, although the officers had a warrant for his arrest, they did not have reason to believe he was in the trailer on the morning of November 17, 2013. Maley, 2017 WL 8941236 at *4-*5. However, Judge Bowman further concluded that the evidence obtained from the trailer was not subject to suppression because it would inevitably have been discovered during an inventory search following officers' lawful seizure of the trailer pursuant to administrative forfeiture. Id. at *5-*6.

         Mr. Maley filed an Objection to Judge Bowman's Recommendation on April 3, 2017, to which the Government responded on April 14, 2017. (Cr. No. 14-637, Docs. 84, 86, 87.) On May 8, 2017, United States District Judge Frank Zapata issued an order sustaining Mr. Maley's Objection and granting his motion to suppress. (Cr. No. 14-637, Doc. 93); United States v. Maley, 2017 WL 1830483 (D. Ariz. May 8, 2017). In his Order, Judge Zapata reviewed the portion of Judge Bowman's Recommendation regarding officers' initial entry into Mr. Maley's trailer for clear error because neither side had objected to it. Maley, 2017 WL 1830483 at *2. Judge Zapata found no clear error with respect to this portion of the Recommendation. Id.

         However, in light of Mr. Maley's Objection, Judge Zapata reviewed the portion of Judge Bowman's Recommendation regarding the inevitable discovery doctrine de novo. Id. Judge Zapata rejected this portion of the Recommendation, holding that: (1) officers' seizure of Mr. Maley's trailer was unlawful under 18 U.S.C. § 981(b)(2); and thus, (2) a subsequent inventory search of the trailer would have been impermissible and the inevitable discovery doctrine did not apply to evidence obtained as a result of the seizure. Id. at *2-*5. Judge Zapata therefore concluded that “[t]he exclusionary rule prohibits the [G]overnment from introducing in its casein-chief evidence obtained as a result of the agents' unlawful entry into and seizure of [Mr. Maley's] trailer.” Id. at *5. On the Government's motion, the court dismissed the District of Arizona indictment against Mr. Maley on June 2, 2017. (Cr. No. 14-637, Docs. 95, 96.)

         Mr. Maley filed the Section 2255 Motion at issue on December 13, 2017, pro se. (Doc. 290.) In his motion, Mr. Maley claims that: (1) his New Mexico trial counsel were constitutionally ineffective for failing to file a pre-trial motion to suppress evidence obtained as a result of officers' entry into, and seizure and search of, his trailer; (2) officers' entry into, and seizure and search of, the trailer violated his Fourth Amendment rights; and, (3) his appellate counsel was constitutionally ineffective for failing to raise the suppression issue on direct appeal. (Id. at 13-21.) The Government responded in opposition to Mr. Maley's Section 2255 Motion on March 6, 2018, (Doc. 298); Mr. Maley filed a pro se reply in support of it on May 7, 2018, (Doc. 309); the Government filed a surreply on June 1, 2018, (Doc. 315); and, Mr. Maley filed a pro se surresponse on June 25, 2018. (Doc. 326.) The Government moved to strike Mr. Maley's surresponse on July 23, 2018, and that motion remains pending. (Doc. 329.)

         The Court appointed Todd A. Coberly to represent Mr. Maley on December 10, 2018, (Doc. 342), and ordered supplemental briefing on December 11, 2018. (Doc. 343.) Mr. Maley filed a supplemental brief on March 11, 2019, (Doc. 350); the Government filed a supplemental response on May 1, 2019, (Doc. 357); and, Mr. Maley filed a supplemental reply on May 13, 2019. (Doc. 359.)

         On June 17, 2019, the Court scheduled an evidentiary hearing for August 29, 2019, which it later continued to October 4, 2019 at Mr. Maley's request. (Docs. 364, 370, 371.) However, on September 23, 2019, the parties filed a Notice of Stipulation regarding whether the firearms admitted into evidence at Mr. Maley's trial were in plain view when officers entered Mr. Maley's trailer on November 17, 2013. (Doc. 376.) In the notice the parties stated that, given the stipulated facts, they did not believe that the evidentiary hearing scheduled for October 4, 2019 would be necessary. (Id. at 1.) Accordingly, the Court vacated the hearing. (Doc. 377.)

         II. Summary of Record Evidence Relevant to Mr. Maley's Section 2255 Motion[2]

         Agent Acee's Testimony

         Las Cruces FBI Agent Bryan Acee became aware of a methamphetamine investigation involving Ms. Savage in the spring of 2013, and began conducting undercover buys pursuant to the investigation in May or June 2013, through which he met Ms. Sanders in July 2013. (Doc. 163 at 5-6, 9, 21-22.) On July 11, 2013, officers conducting surveillance saw Ms. Savage and Ms. Sanders go to Mr. Niño's trailer to get methamphetamine to sell to Agent Acee. (Doc. 167 at 9-10, 17-18.)

         On August 1, 2013, Ms. Sanders agreed to arrange for Agent Acee to buy methamphetamine from a local source named Matt. (Doc. 163 at 33, 35, 37-38, 45; Cr. No. 14-637, Doc. 61 at 11-12, 126.) Ms. Sanders directed Agent Acee to a white fifth-wheel travel trailer with blue striping located in space number three of Sunny Acres RV Park in Las Cruces, New Mexico.[3] (Doc. 163 at 33, 38, 45; Cr. No. 14-637, Doc. 61 at 11-13.) Agent Acee saw a black Dodge 1500 Ram pickup truck, a brownish Ford Crown Victoria, and an olive-green Range Rover parked by the trailer in space number three. (Cr. No. 14-637, Doc. 61 at 13, 49.) He gave Ms. Sanders around $9, 000, which she took into the trailer. (Doc. 163 at 38-39; Cr. No. 14-637, Doc. 61 at 13-14.) While waiting in his vehicle, Agent Acee saw a man he later identified as Mr. Maley move the closed blinds and look out the trailer window. (Doc. 163 at 39; Cr. No. 14-637, Doc. 61 at 14-15.) Ms. Sanders returned from the trailer with 10 ounces of methamphetamine, which she gave to Agent Acee. (Doc. 163 at 39-41; Cr. No. 14-637, Doc. 61 at 15.)

         The next morning, Agent Acee returned to Sunny Acres RV Park to collect license plate data. (Doc. 163 at 44; Cr. No. 14-637, Doc. 61 at 15-17.) He saw the same vehicles parked at space number three as he had the day before. (Cr. No. 14-637, Doc. 61 at 15-17.) He also saw Mr. Maley outside the trailer, cleaning or working on a bicycle. (Doc. 163 at 44; Cr. No. 14-637, Doc. 61 at 17.) Agent Acee returned to the property again on August 5, 2013, when he saw the same three automobiles parked in different positions by the trailer. (Cr. No. 14-637, Doc. 61 at 17-18.)

         On August 5, 2013, at Agent Acee's direction, Doña Ana County Sheriff's Deputy Curtis Yarnell stopped the olive-green Range Rover. (Id. at 18-19.) The driver, its only occupant, was Sarah Stonestreet. (Id. at 18-20.) Ms. Stonestreet gave Deputy Yarnell a bill of sale indicating that Mr. Maley had purchased the trailer in space number three of Sunny Acres RV Park for $7, 000. (Id.) Deputy Yarnell saw the olive-green Range Rover again on August 6, 2013. (Id. at 20-22.) Ms. Stonestreet was driving the vehicle, and Mr. Maley was a passenger. (Id.)

         The owners of Sunny Acres RV Park later informed Agent Acee that Ms. Stonestreet and Mr. Maley were renting space number three. (Id. at 22.) Agent Acee confirmed Mr. Maley's identity by way of a Colorado driver's license or identification card. (Id.) According to “records from New Mexico and Arizona, ” Mr. Maley last had “legitimate employment” in 2007. (Id. at 22-23.)

         Agent Acee participated in the coordinated arrests of a “couple dozen” persons involved in the methamphetamine investigation at issue on November 14, 2013. (Doc. 163 at 51; Cr. No. 14-637, Doc. 61 at 26.) However, officers could not arrest Mr. Maley because he had moved out of Sunny Acres RV Park before the “takedown” and left no forwarding address. (Cr. No. 14-637, Doc. 61 at 26-27.)

         Agent Acee “queried different databases” in “states in which [he] knew [Mr. Maley] had a history, ” and found that Mr. Maley had obtained an Arizona driver's license or identification card in late September 2013. (Id. at 27-28.) Agent Acee also found two vehicles registered to Mr. Maley in Arizona. (Id.) On both the driver's license or identification card and the vehicle registrations, Mr. Maley listed his address as 1920 West Gardner Lane in Tucson. (Id.) Agent Acee's records search revealed that Mr. Maley's wife, Denise Maley, also lived at this address. (Id. at 73-74.) Arizona FBI agents who subsequently surveilled the property saw Mr. Maley's travel trailer, his pickup truck, and a Range Rover parked by a double-wide trailer there. (Id. at 28-29.) However, Agent Acee never heard that anyone saw Mr. Maley at the property. (Id. at 66.)

         Agent Acee, Las Cruces FBI agents Greg Watterson and George Dougherty, and Deputy Yarnell traveled from Las Cruces to Tucson on November 16, 2013 to execute the warrant for Mr. Maley's arrest and seize Mr. Maley's vehicles. (Id. at 29-30, 64-65, 68, 127-28.) Doña Ana County Sheriff's Deputies Arnie Flores and Ernest DiMatteo also traveled from Las Cruces to Tucson to assist. (Id. at 64-65.) On November 16, 2013, Agent Acee went by 1920 West Gardner Lane, which was at the end of a one-lane dirt road, and saw Mr. Maley's trailer, his pickup truck, and a silver Range Rover parked there. (Id. at 29-30, 32.)

         Around 9:00 a.m. on Sunday, November 17, 2013, the Las Cruces agents and officers, two or three Tucson FBI agents, and at least two local uniformed sheriff's deputies arrived at 1920 West Gardner Lane. (Id. at 30, 67, 69-70.) Mr. Maley's travel trailer, his pickup truck, and the silver Range Rover were parked by the double-wide trailer on the property. (Id. at 31.) The travel trailer's awnings were up, its stairs were down, its slide outs were extended to create more living space inside, the blinds were closed, and a surveillance camera in a window pointed at the area outside the trailer's front door. (Id. at 32, 52, 131.) An extension cord, a garden hose, and a flexible pipe attached to a septic outlet ran from the travel trailer to the double-wide trailer. (Id. at 32-33.) The pickup truck had a “towing package” on it. (Id. at 32.)

         When officers arrived at 1920 West Gardner Lane, Mr. Maley's two adult sons were outside working on a car. (Id. at 33.) As officers took positions around the property, Agent Acee heard Mr. Maley's sons shout a warning toward the double-wide trailer about law enforcement being present. (Id. at 34, 36, 81.) Agent Acee did not document this warning in his report. (Id. at 82.) Both of Mr. Maley's sons were handcuffed, detained, and put in sheriff's vehicles, and one of his sons, Tyler Maley, was arrested after officers learned he had an outstanding warrant. (Id. at 34-35.) Mr. Maley's sons told Agent Acee that Mr. Maley was not there but Agent Acee did not believe them. (Id. at 123-24.)

         Agent Acee and other officers entered the double-wide trailer and searched it for Mr. Maley but found no one inside. (Id. at 36-37.) They then determined that the travel trailer was locked. (Id. at 37-38, 94.) Agent Acee asked Mr. Maley's sons for the keys, without success. (Id. at 37.) Agents banged on the trailer and yelled, but no one came out, so Agents Acee, Watterson, and Dougherty and Deputy Yarnell breached the door and entered the trailer. (Id. at 37-38.) Agent Acee did not see or hear anyone in the trailer before entering it. (Id. at 94.) However, the blinds were closed and, in his experience, it is “not unusual” to hear nothing in a residence when executing an arrest warrant for a fugitive, because sometimes fugitives hide and remain still and quiet. (Id. at 132.)

         While searching the travel trailer for Mr. Maley, Agent Acee observed incriminating items in plain view, including suspected methamphetamine, U.S. currency, rounds of ammunition, two pistols, and a Mossberg 12-guage shotgun, the barrel of which he saw in the shower. (Id. at 42, 47-48.) The shotgun was later admitted into evidence at Mr. Maley's trial as Government's Exhibit 9. (Doc. 376.) Before he saw the firearms in plain view, Agent Acee knew that Mr. Maley was a convicted felon. (Cr. No. 14-637, Doc. 61 at 47.) At this point, Agent Acee decided to seize the travel trailer and obtain a warrant to search it. (Id. at 47-49.) He took photographs of the incriminating items in plain view to help him prepare the search warrant application. (Id. at 110.)

         He could have applied for a search warrant at that time but elected not to because he felt it would be unsafe for officers to remain at the property. (Id. at 112-13.)

         Officers disconnected the trailer's water, power, and septic lines, and moved “[a] lot of stuff” inside the trailer to push the slide outs back in. (Id. at 49-50, 138.) They then hooked the trailer to Mr. Maley's pickup truck, towed it to the Tucson FBI office, and sealed it. (Id. at 49-50.) Agent Acee did not immediately complete the application for a warrant to search the trailer. (Id. at 50-51.) Rather, he first traveled back to Las Cruces to get more clothes and return the other officers who had traveled to Tucson with him. (Id.) On November 19, 2013, Agent Acee and other officers obtained a search warrant for Mr. Maley's trailer, which they executed at the Tucson FBI office, finding 30 firearms, methamphetamine, cocaine, marijuana, U.S. currency, ammunition, and drug packaging materials. (Id. at 51-52; Doc. 165 at 219-20; see Doc. 341-1.)

         In December 2013, the FBI continued to try to locate Mr. Maley by covertly investigating persons Mr. Maley was suspected of supplying with methamphetamine. (Doc. 163 at 99-100.) One of these persons was Mr. Niño, from whom the FBI had been purchasing methamphetamine via a confidential informant. (Id. at 100.) In an effort to “draw [Mr. Maley] into the scene, ” the FBI directed the informant to try to purchase a larger amount of methamphetamine from Mr. Niño. (Id. at 100-01.) The informant reported that Mr. Niño did not have the methamphetamine yet but expected it from Tucson on December 4, 2013. (Id.) Agent Acee obtained a warrant to search Mr. Niño's residence, which he planned to execute after the person delivering the methamphetamine had arrived. (Id. at 101.) However, on December 4, 2013, Ms. Carpenter arrived at Mr. Niño's residence earlier than anticipated and left the residence before officers could execute the warrant. (Id. at 101-02.) Thus, officers stopped Ms. Carpenter's vehicle and simultaneously searched Mr. Niño's residence, finding a bag a methamphetamine at the residence. (Id. at 102.)

         At trial the Court admitted eight of the firearms found in the trailer during the November 19, 2013 search into evidence as Government's Exhibits 7, 8, and 10 through 15. (Doc. 163 at 63-72.) Agent Acee chose the firearms that were admitted into evidence because Ms. Stonestreet remembered Mr. Maley possessing them when she and Mr. Maley lived together in New Mexico. (Doc. 165 at 220.)

         Sarah Stonestreet's Testimony

         Ms. Stonestreet and Mr. Maley moved in with Mr. Niño in May 2013. (Doc. 164 at 31.) Mr. Maley was earning money selling methamphetamine and did not have a legitimate job. (Id. at 32, 39, 70-71.) He got the methamphetamine he sold from Tucson. (Id. at 32-33.) Mr. Maley sold methamphetamine to Mr. Niño, and Mr. Niño sold it to Ms. Sanders. (Id. at 32, 40.) Mr. Maley and Ms. Stonestreet stayed with Mr. Niño until July 3, 2013, when Mr. Maley bought a Sportsmen travel trailer and he and Ms. Stonestreet moved to Sunny Acres RV Park. (Id. at 33-34.) Mr. Maley purchased the trailer and a black Dodge Ram 1500 pickup truck with drug money, and traded drugs for an olive-green Land Rover and a Ford Crown Victoria. (Id. at 35-38.) Ms. Stonestreet recognized Government's Exhibits 7 through 15 as firearms Mr. Maley possessed when she and Mr. Maley lived together in New Mexico. (Id. at 54-57.)

         Deputy Yarnell's Testimony

         On August 4, 2013, as part of the methamphetamine investigation involving Mr. Maley, Deputy Yarnell stopped a green Land Rover. (Doc. 164 at 84, 90-91.) Ms. Stonestreet was driving the vehicle and was its only occupant. (Id. at 91.) She could not find the vehicle's registration and handed Deputy Yarnell “a bunch of papers.” (Id. at 92.) One of the papers was a bill of sale dated July 2013 for a 1999 Sportsmen travel trailer showing that Matt Maley had purchased the trailer for $7, 000 cash. (Id. at 92-94.) Deputy Yarnell photographed the bill of sale before returning it to Ms. Stonestreet. (Id.) On August 6, 2013, Deputy Yarnell observed Ms. Stonestreet and Mr. Maley in the green Land Rover. (Id. at 94-95.)

         Deputy DiMatteo's Testimony

         Doña Ana County Sheriff's Deputy Ernest DiMatteo conducted surveillance during Agent Acee's undercover transactions with Ms. Savage and Ms. Sanders. (Id. at 104, 106-13.) Mr. Niño resided in a trailer in a park adjacent to Sunny Acres RV Park. (Id. at 120-22.) Officers saw Ms. Sanders go to this trailer during undercover transactions in July and August 2013. (Id. at 123.) The targets of the methamphetamine investigation at issue “initially became [sic] with Aubrey Savage, Jennifer Sanders to Mr. Cox, Rick Cox, to Mr. Jose and Jesus Niño, and ultimately to Mr. Maley.” (Id.)

         Jennifer Sanders' Testimony

         In 2013, Mr. Niño supplied methamphetamine to Ms. Sanders, and Ms. Sanders supplied it to Ms. Savage. (Id. at 135-36, 137-38.) On August 1, 2013, Ms. Sanders arranged for Agent Acee, who was acting undercover without her knowledge, to buy methamphetamine from Mr. Maley and Ms. Stonestreet. (Id. at 142-46.) They drove to the trailer where Mr. Maley and Ms. Stonestreet resided; Ms. Sanders went inside and obtained 10 ounces of methamphetamine from Mr. Maley and Ms. Stonestreet; and, Ms. Sanders came back out and gave the methamphetamine to Agent Acee. (Id.) Mr. Maley was unhappy on this occasion and told Ms. Sanders he knew she did business with Mr. Niño and she should not bypass him again. (Id. at 145-46, 165-66.)

         Candice Carpenter's Testimony

         Ms. Carpenter entered into a plea agreement with the Government in this case. (Id. at 201.) The plea agreement was admitted into evidence, and Ms. Carpenter confirmed that in it she agreed to testify truthfully and completely about her participation in and knowledge of criminal activities. (Id. at 203-05.) Mr. Maley's trial counsel cross-examined Ms. Carpenter about the plea agreement and the benefits she received as a result of it. (Id. at 237-39, 243-45.)

         Ms. Carpenter reconnected with Mr. Maley in Arizona in September 2013 and accompanied Mr. Maley on trips to deliver drugs to Mr. Niño that fall. (Id. at 208, 211-16.) One such trip began on November 15, 2013, when Ms. Carpenter, Mr. Maley, and his daughter drove a green Land Rover to Albuquerque to meet Mr. Maley's brother after delivering drugs to Mr. Niño in Las Cruces. (Id. at 213-16.)

         On December 5, 2013, Ms. Carpenter drove to Las Cruces to deliver drugs to Mr. Niño for Mr. Maley.[4] (Id. at 221, 229.) When she arrived in Las Cruces, she met Mr. Maley at a hotel and he took some of the drugs. (Id. at 221-23.) Afterward she delivered the remainder of the drugs to Mr. Niño, who then accompanied her to an auto parts store. (Id. at 223.) On the way back officers pulled them over, arrested Mr. Niño, detained and questioned Ms. Carpenter, and searched her and Mr. Maley's hotel room. (Id. at 223-25, 230.) In the course of this encounter Ms. Carpenter told officers where they might find Mr. Maley. (Id. at 230-31.)

         Jose Niño's Testimony

         Mr. Niño entered into a plea agreement with the Government in this case. (Doc. 165 at 122.) The plea agreement was admitted into evidence, and Mr. Niño confirmed that in it he agreed to testify for the Government. (Id. at 122-23.) Mr. Maley's trial counsel cross-examined Mr. Niño about the plea agreement and the benefits he received as a result of it. (Id. at 131-36.) Counsel also cross-examined Mr. Niño regarding his 2004 conviction for possession with intent to distribute cocaine. (Id. at 126.)

         Mr. Maley and Ms. Stonestreet moved in with Mr. Niño in April or May 2013. (Id. at 105-06.) Around this time, Mr. Niño began using and selling more methamphetamine. (Id. at 106-08.) Mr. Maley sold methamphetamine to Mr. Niño, and Mr. Niño sold it to Ms. Sanders. (Id. at 107. 112-13. 117.) Mr. Maley continued to sell methamphetamine to Mr. Niño after he moved to Arizona. (Id. at 111, 117.) After the move, Mr. Maley and Ms. Carpenter delivered methamphetamine to Mr. Niño five or six times, including once in mid-November when they were traveling in a green Land Rover with Mr. Maley's daughter. (Id. at 113-15.)

         Agent Watterson's Testimony

         Agent Watterson conducted surveillance in support of the methamphetamine investigation involving Mr. Maley. (Id. at 140; Cr. No. 14-637, Doc. 76 at 14-15.) When he surveilled the olive-green Range Rover associated with Mr. Maley's trailer, Ms. Stonestreet was driving it. (Cr. No. 14-637, Doc. 76 at 15-16.) On July 1, 2013, Agent Watterson observed Ms. Savage and Ms. Sanders enter the trailer park where Mr. Niño lived, stay there for ten to fifteen minutes, and proceed to an undercover transaction with Agent Acee. (Doc. 165 at 151-53, 201-02.)

         In November 2013, Agent Watterson learned that Mr. Maley had listed 1920 West Gardner Lane as his address on his Arizona driver's license or identification card and vehicle registrations, and that his wife was “listed on the property as well.” (Cr. No. 14-637, Doc. 76 at 16, 34, 40.) Agent Watterson contacted Tucson FBI Agent Jordan Kuretich and asked him to drive by the property. (Id. at 16-17.) Based on the information Agent Kuretich provided, Agent Watterson determined that Mr. Maley's trailer and several of his vehicles were at 1920 West Gardner Lane. (Id. at 18, 31.) However, nobody physically observed Mr. Maley at that address. (Id. at 40-41.)

         Agent Watterson traveled from Las Cruces to Tucson on November 16, 2013 and drove by 1920 West Gardner Lane on that date. (Id. at 18-19.) He saw the trailer in which Mr. Maley had resided in Las Cruces, as well as the pickup truck previously parked by the trailer. (Id. at 19.) He also saw a silver Land Rover. (Id.)

         Agent Watterson participated in the attempt to arrest Mr. Maley at 1920 West Gardner Lane on November 17, 2013. (Id. at 16, 19-20.) When officers arrived and fanned out, Mr. Maley's sons yelled as if they were yelling to someone inside the doublewide trailer. (Id. at 21, 35-37.) Agent Watterson helped to search the doublewide and travel trailers for Mr. Maley. (Id. at 21-23.) He heard no response or movement inside the travel trailer after officers knocked and announced. (Id. at 43.) The window coverings were shut and there was a surveillance camera pointing at the door. (Id. at 43-44.) He saw no contraband in plain view in the section of the travel trailer he cleared. (Id. at 24.) It took “a little while” to hook the travel trailer to the pickup truck for towing, disconnect the water, electric, and sewer lines, and retract the trailer's slide out. (Id. at 24-25.) The officers did not have any documents with them authorizing the administrative forfeiture of Mr. Maley's assets. (Id. at 55.)

         Other agents had conducted controlled drug buys from Mr. Niño using a confidential informant. (Doc. 165 at 179.) Through the informant, agents learned that Mr. Niño was expecting a drug shipment on December 4, 2013. (Id. at 179-80.) The agents set up surveillance at Mr. Niño's residence and got a warrant to search it. (Id.) On December 4, 2013, Agent Watterson participated in the search of Mr. Niño's residence, during which officers found narcotics. (Id. at 182-83.) Agent Watterson then proceeded to the hotel room where Ms. Carpenter and Mr. Maley were staying. (Id. at 184.) Deputies DiMatteo and Flores brought Ms. Carpenter to the room, and Agent Watterson and other officers interviewed her for a couple of hours. (Id. at 188-89, 199.) Ms. Carpenter informed them that Mr. Maley might be at 1234 Willow Street. (Id. at 199-200.) Mr. Maley was later apprehended at that address. (Id. at 200.)

         Agent Dougherty's Testimony

         Agent Dougherty participated in the search of Mr. Niño's trailer on December 4, 2013, in which officers found suspected methamphetamine. (Id. at 208-09.) He also participated in clearing the hotel room in which Mr. Maley and Ms. Carpenter were staying on that date. (Id. at 209-10.) Acting on information received from Agent Watterson, Agent Dougherty then went to 1234 North Willow Street in Las Cruces and observed a person matching Mr. Maley's description enter the residence. (Id. at 211-12.) Agent Dougherty knocked on the door and asked the woman who answered through the door to ...


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