United States District Court, D. Arizona
G. Campbell United States District Judge
Jesus Miguel Leon has filed a number of pretrial motions. The
Court heard oral argument on the motions on November 28,
2017. For the reasons that follow, Defendant's motions
will be denied.
Motion to Dismiss or Limit Count 1.
of the First Superseding Indictment alleges that Defendant
and others engaged in a conspiracy from June 1, 2013 to
December 13, 2016 to distribute 1, 000 or more kilograms of
marijuana. Doc. 103 at 2. Defendant asks the Court to dismiss
or limit portions of this conspiracy allegation. He asserts
that the government has no evidence of his involvement in the
alleged conspiracy after August 26, 2014. He further notes
that he was in state custody from May 15, 2015 to May 9,
2016, and argues that he could not have been involved in the
alleged conspiracy during that time. Doc. 215.
government states that it will present evidence that the
conspirators began shipping packages of marijuana through the
postal service in 2013 and continued through 2016. The
government asserts that the United States Postal Inspection
Service (“USPIS”) identified at least 394
packages shipped by the organization. The government further
notes that when Defendant was arrested on December 13, 2016,
he was in possession of approximately 11 kilograms of
marijuana, cash, and various weapons. Doc. 242.
argument, the government stated that cooperating witnesses
will testify that Defendant was involved in the conspiracy
before and after his state imprisonment. The government also
asserted that it has evidence that Defendant was the source
of supply for the marijuana shipped by the conspiracy, and
that his co-conspirators carried on the operation while he
was incarcerated. The government argues that Defendant's
involvement in the charged conspiracy is a factual
determination for the jury.
seems to be moving for summary judgment, a procedural device
not available in criminal cases. He argues that the Court
should find the government's proof of his involvement in
the conspiracy after August 26, 2014 to be insufficient, and
on that basis either dismiss portions of Count 1 or otherwise
limit the government's evidence and arguments on that
count. Defendant cites no authority for the Court's
ability to enter such an order before trial, but Defendant
may seek such a ruling after the government's case in
chief. Fed. R. Crim. P. 29.
addition, the Court notes that although a defendant may
withdraw from a conspiracy, withdrawal normally is a defense.
The Supreme Court has held that a defendant has the burden of
showing that he withdrew from the conspiracy. Smith v.
United States, 568 U.S. 106, 110-112 (2013); see
also Model Ninth Circuit Jury Instruction 8.24 (placing
burden of proving withdrawal on defendants). If Defendant
believes that he withdrew from the conspiracy in August of
2014, he can seek to prove that defense at trial.
Court is not persuaded that Defendant's incarceration by
the state prevented him from continuing to participate in the
conspiracy. “As a general rule, the fact that a
conspirator is taken into custody does not automatically
indicate disavowal of the conspiracy.” United
States v. Johnson, 956 F.2d 894, 906-907 (9th Cir.
grand jury found probable cause to believe that Defendant was
involved in the marijuana distribution conspiracy from 2013
to 2016. The government asserts that it can prove
Defendant's involvement during this entire period. Unless
the Court grants a Rule 29 motion during trial, this is a
factual issue for the jury to resolve. The Court can find no
legal basis upon which to preclude the government from
asserting at trial that Defendant was involved during the
full period of the conspiracy.
Motion in Limine - Extrapolation.
government alleges that the conspirators in this case shipped
at least 394 packages of marijuana through the postal
service, but Defendant argues that only 44 of the shipments
were opened by USPIS and found to contain marijuana.
Defendant argues that the Court should prohibit the
government from arguing at trial that the other packages
contained marijuana. Defendant argues that such an assertion
would be based purely on speculation. Doc. 214. Defendant
Carlos Hunt joins this motion. Doc. 224.
government responds by noting that in 2014 USPIS began to
identify numerous packages that contained large amounts of
marijuana being sent from Arizona to Tennessee. Postal
inspectors identified packages dating back to 2013, and
developed evidence of shipments continuing through 2016. Of
the 394 packages identified by USPIS, 44 were seized and
found to contain marijuana, totaling approximately 214
the packages were shipped from Arizona to Tennessee. The
government will present photographic and other evidence of
alleged conspirators mailing the packages from various
locations in Arizona. The government will present evidence
from the USPIS Package Management System containing the
identification, addresses, and shipping dates of specific
packages, including their weight and who mailed them, when
available. The government ...