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United States v. Avila

United States District Court, D. Colorado

January 31, 2018

7. RICHARD AVILA, Defendant.


          William J. Martínez United States District Judge

         Now before the Court is Defendant's Motion to Dismiss the Indictment Based on Mr. Avila's Constitutional Rights Under the Fifth and Sixth Amendment[s] and Brady v. Maryland, 373 U.S. 83 (1963) or in the Alternative to Suppress Evidence as Articulated in the Defense Motion In Limine (ECF No. 357), and that portion of Defendant's Motion In Limine (ECF No. 356) which seeks to exclude “all evidence that relates to Amado Navidad Sanchez, ” who is a named co-defendant and remains a fugitive in this drug conspiracy case (“Navidad Sanchez”).

         Defendant argues that the Government has infringed on his right to a fair trial by improperly procuring Navidad Sanchez's unavailability, thereby depriving Defendant of potentially exculpatory testimony. The Court has received extensive briefing on these motions and held an evidentiary hearing on January 24, 2018. (ECF Nos. 356, 357, 368, 481, 513, 517.) As explained below, the motions are denied because Defendant has not carried the burden of showing the Government acted in bad faith or with knowledge that Navidad Sanchez possessed evidence helpful to the Defendant.

         I. BACKGROUND

         The Court has summarized the factual background of this case in prior orders and does not repeat the detailed background here. Familiarity with the background of this case is presumed. (See, e.g., ECF No. 464.) The documentary evidence and testimony admitted at the evidentiary hearing on January 24, 2018 establishes the facts summarized below.

         Defendant Richard Avila (“Defendant” or “Avila”) is charged in Count 1 of the Superseding Indictment with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) & 846. (ECF No. 62.)[1] Of the ten Defendants charged as alleged co-conspirators, eight have pled guilty to one or more of the charges filed against them. Navidad Sanchez remains a fugitive, while Avila alone remains set to proceed to trial, and denies that he was a part of the charged drug conspiracy.

         Avila first met Navidad Sanchez at the residence of co-defendant Tanya Lindelien (who is the mother of one of Avila's children) in early January 2016. By that time, the Government's investigation of the conspiracy charged in this case was well under way. Law enforcement subsequently observed Navidad Sanchez delivering what they believed to be methamphetamine to Lindelien on at least one occasion, on or around February 14, 2016. Furthermore, DEA agents had established surveillance on Navidad Sanchez's vehicle after seeing it at the residence of co-defendant Jesus Zamora Torres, who was also suspected of trafficking methamphetamine from Arizona to Colorado as a supplier to Lindelien and other conspirators charged in this case.

         The DEA obtained a GPS tracking warrant on February 19, 2016, allowing them to monitor the location of Navidad Sanchez's mobile phone. Based on this tracking and other surveillance, law enforcement knew Navidad Sanchez was traveling from Arizona to Colorado on February 27, 2016. DEA Special Agent Brenna McIntosh caught up with him northbound on I-25 in the vicinity of Larkspur, Colorado and, working with another officer (Detective Dompier), followed Navidad Sanchez for approximately 50 miles as he drove to Avila's residence in Commerce City, Colorado. There, Detective Dompier observed Navidad Sanchez and Avila together in the driveway, then saw Navidad Sanchez back his vehicle into a fenced area behind Avila's garage, where he could no longer see what they were doing. Approximately 12 minutes after arriving, Navidad Sanchez left Avila's residence and drove to Lindelien's residence. He then returned to Arizona, leaving the Denver area approximately 90 minutes after he first arrived at Avila's residence.

         In late February-early March 2016, Lindelien had a series of communications with a DEA undercover agent who had previously purchased methamphetamine from her and was trying to do so again. Lindelien indicated that she would be traveling to Arizona to obtain a resupply of methamphetamine. However, on March 3, 2016, she communicated to the undercover agent that, “[m]y person, he has to come out here for something else . . . that way we can get that one cheaper for you * * * he said he'd bring me one right now * * * he's going to be here tomorrow or Saturday morning.” (ECF No. 257-1 at 140-41.) This contributed to the DEA's suspicion that Navidad Sanchez would be driving another delivery of methamphetamine from Arizona to Colorado within the next few days.

         On March 5, 2016, Navidad Sanchez and Avila exchanged text messages in which Navidad Sanchez asked, “Richard do you need anything? O not this time, ?” to which Avila responded “Yed i will need, ” and Navidad Sanchez confirmed “Okay I see you on morning, be ready, ” eliciting an “Ok” from Avila. (Ex. R at 17 (as in original).)[2]At approximately 3:30 p.m., the GPS data showed Navidad Sanchez northbound from Phoenix on I-17, headed towards Denver.

         That evening, the DEA team developed a plan to have local law enforcement in Pueblo, Colorado effect a “wall stop” of Navidad Sanchez as he traveled north towards Denver. Generally speaking, “[i]n a wall stop, a patrol officer is asked to find his own lawful reason to stop and search the vehicle and is not advised of the information known by investigators in order to protect the secrecy of the ongoing investigation.” United States v. Benard, 680 F.3d 1206, 1208-09 (10th Cir. 2012). In this case, another agent working with Special Agent McIntosh (Detective White) made a call to Pueblo Police Department Detective Petkosak, a K-9 and drug interdiction officer. He was given the description and license plate number of Navidad Sanchez's vehicle and asked to initiate a traffic stop the next day. In Special Agent McIntosh's words, Detective Petkosak was to “develop his own reasons to stop the vehicle.”[3]

         As described by Special Agent McIntosh, “five or six” DEA agents and affiliated law enforcement officers in unmarked cars worked together to locate and follow Navidad Sanchez as he passed from New Mexico to Colorado in the early morning of March 6, 2016. These officers trailed and identified Navidad Sanchez but did not stop him. Consistent with the plan developed the night before, Detective Petkosak located Navidad Sanchez's vehicle northbound on I-25. After confirming that the description and license plate number matched the information given him to him by the DEA, Detective Petkosak initiated a pretextual traffic stop of Navidad Sanchez at 5:36 a.m., when he failed to reduce his speed where the speed limit drops from 75mph to 65mph as I-25 passes through the city of Pueblo.

         As described in much greater detail by Detective Petkosak's testimony, warrant applications, and his and the DEA's written reports, after stopping Navidad Sanchez, Detective Petkosak obtained his vehicle registration, insurance information, and Mexican passport, as well as identification information for a female passenger and her two young children. The evidence reflects that Navidad Sanchez did not present any driver's license to Detective Petkosak. While dispatch “ran the clearances” on this paperwork (or shortly thereafter), Detective Petkosak asked Navidad Sanchez for permission to conduct a dog sniff of the vehicle using his trained K-9, Widget. When Navidad Sanchez and his female passenger indicated that they would prefer Detective Petkosak did not conduct a dog sniff, he informed them that the law allowed him to do so anyway.

         During the subsequent open air sniff, K-9 Widget alerted, indicating an odor of narcotics. By that time, a Spanish-speaking Pueblo police officer (Sergeant Ortega) had arrived, who asked Navidad Sanchez for consent to search his vehicle. When consent was declined, the officers informed Navidad Sanchez that they would be seeking a search warrant for the vehicle. Eventually Navidad Sanchez consented to have the officers drive his vehicle to a Pueblo police department location.

         However, Navidad Sanchez was not detained or questioned. Notwithstanding the DEA's suspicion of major drug trafficking, the positive dog alert, Navidad Sanchez's lack of a driver's license, and Detective Petkosak's observations that he was “visibly nervous, ” “would not make eye contact, ” had directed his passenger how to answer a question about their relationship, and had reacted with an audible sigh and dejected demeanor which Detective Petkosak took as “another mental alert that something was with this vehicle” when Navidad Sanchez was informed that the dog sniff would go ahead, neither Pueblo officers nor DEA agents detained or interviewed Navidad Sanchez.

         Instead, Sergeant Ortega drove Navidad Sanchez and his passengers to a nearby Loaf n' Jug convenience store. There, he “obtain[ed] . . . a cell phone number so [Detective Petkosak] could call [him] when we were done if nothing was found.” Sergeant Ortega then left Navidad Sanchez and his passengers on their own recognizance while Pueblo P.D. sought, and soon obtained, a warrant to search the vehicle. Although the several DEA agents and affiliated officers who had been following Navidad Sanchez all morning were in the area, they did not participate in the traffic stop in any way, and did not put Navidad Sanchez under surveillance, watch where he went, or follow him after he was left at the convenience store. Since his phone was left in the vehicle, the DEA could no longer track him via GPS.

         As expected, when Pueblo officers and the DEA searched Navidad Sanchez's vehicle, beginning at around 8:30 a.m., they found a substantial quantity of methamphetamine, specifically, four one pound “bricks, ” located in the trunk. At that point, Detective Petkosak evidently requested that patrol officers return to the Loaf n' Jug to “look for the parties that they had dropped off.” However, Navidad Sanchez and his passengers had by then departed.[4]

         Because the DEA's investigation was “an ongoing investigation that [he] didn't want to compromise, ” and because the DEA had informed the Pueblo officers that no evidence from the federal investigation could be used in any state criminal case against Navidad Sanchez, none of Detective Petkosak's reports, warrant applications, or supporting affidavits mention in any way that the traffic stop was pretextual and conducted based on the DEA's request. To the contrary, Detective Petkosak's written report represents, falsely and misleadingly, that the traffic stop of Navidad Sanchez was the result of a “random patrol, ” rather than the result of a targeted “wall stop.” (Ex. T at 3.)

         On March 10, 2016, Detective Petkosak called Special Agent McIntosh to ask “if we could issue a warrant [for Navidad Sanchez's arrest] without messing up their [federal] investigation.” He testified that he wanted to pursue a warrant and state criminal case “to show the public that the K-9 unit is active and intercepting narcotics on the highway, ” and in particular that he “wanted to get the publicity” for K-9 Widget, but could only do so with active criminal charges. Special Agent McIntosh approved Detective Petkosak's request, and Detective Petkosak applied for an arrest warrant the same day, again representing to the court in Pueblo that his stop of Navidad Sanchez had been the result of a “random patrol, ” while omitting any mention of the DEA's involvement. (Ex. Y.)[5] The District Attorney in Pueblo filed charges against Navidad Sanchez (see Ex. Z), and thereafter several news stories reporting the drug seizure ran in local and regional outlets.[6] In addition to crediting K-9 Widget and seeking tips on Navidad Sanchez's whereabouts, ...

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