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United States v. Leon

United States District Court, D. Arizona

November 29, 2017

United States of America, Plaintiff,
v.
Jesus Miguel Leon, Defendant.

          ORDER

          David G. Campbell United States District Judge

         Defendant 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.

         I. Motion to Dismiss or Limit Count 1.

         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.

         The 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.

         At oral 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.

         Defendant 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.

         In 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.

         The 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. 1992).

         The 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.

         II. Motion in Limine - Extrapolation.

         The 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.

         The 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 pounds.

         All of 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 ...


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