United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
KHALSA UNITED STATES MAGISTRATE JUDGE
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
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.)
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.
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.)
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
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.)
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.)
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.
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.)
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.
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.
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.)
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.)
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.)
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.)
Summary of Record Evidence Relevant to Mr. Maley's
Section 2255 Motion
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,
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. (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.)
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.)
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
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.)
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
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.”
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.)
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
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
December 5, 2013, Ms. Carpenter drove to Las Cruces to
deliver drugs to Mr. Niño for Mr. Maley. (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.)
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.)
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.
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.)
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.
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.)
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.)
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.)
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 ...