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United States v. Hernandez

United States District Court, D. Colorado

February 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
10. VICTOR HERNANDEZ, Defendant.

          ORDER REGARDING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT OR IN THE ALTERNATIVE FOR A BILL OF PARTICULARS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Victor Hernandez's Motion to Dismiss the Indictment or, in the Alternative, for a Bill of Particulars. (Doc. # 570.) For the following reasons, the Court denies the Motion.

         I. THE INDICTMENT

         The Indictment in this case charges Mr. Hernandez with two counts for his alleged role in a large drug conspiracy:

• Count 1: Conspiracy to Distribute and Possess with Intent to Distribute 280 grams or more of cocaine base (crack), and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(II)(ii) and 846. Among other things, this Count includes the dates of the offense (on or about and between February 1, 2016 and March 29, 2017); the location (within the State and District of Colorado and elsewhere); and the participants involved (all 22 Defendants).
• Count Thirty-Eight: Distribution and Possession with Intent to Distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(II)(ii). This Count also includes the date (January 31, 2017), location (Colorado), and participants (Mr. Hernandez and Co-Defendant Eduardo Estrada-Cortes).

         II. MOTION TO DISMISS

         Mr. Hernandez alleges that the Government materially misrepresented the evidence against him to the Grand Jury and that, but for those misrepresentations, the Grand Jury would not have charged him. Mr. Hernandez accordingly moves for dismissal of the Indictment.

         A. LAW

         The remedy of dismissal of indictment on basis of prosecutorial misconduct before grand jury is an extraordinary one. United States v. Pino, 708 F.2d 523, 530 (10th Cir. 1983). An indictment may be dismissed for prosecutorial misconduct only when it is flagrant to the point that there is some significant infringement on the grand jury's ability to exercise independent judgment. Pino, 708 F.2d at 530; see also United States v. Wright, 667 F.2d 793, 795 (9th Cir. 1982). Indeed, “a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendant, ” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988), and there is a “presumption of regularity” for grand jury proceedings. Hamling v. United States, 418 U.S. 87, 139 n. 23 (1974).

         B. ANALYSIS

         Much of the evidence in this case, including the evidence supporting the charges against Mr. Hernandez, stems from recorded phone calls and officer surveillance. Some of those calls took place between Mr. Hernandez and Co-Defendant Estrada-Cortes. Mr. Hernandez contends that the Government Agent misrepresented to the Grand Jury the content of these calls and the history of his relationship with Mr. Estrada-Cortes. Mr. Hernandez argues that the misrepresentations “clearly prejudiced” him because they were the only basis for the Indictment against him and that dismissal of the Indictment is warranted as a result. The Court disagrees.

         Mr. Hernandez specifically takes issue with the following Agent testimony:

[DISTRICT ATTORNEY] Through conversations, did you determine who Lalo was getting his drugs from?
[AGENT] We did.
Q. Who was that?
A. Mr. Victor Hernandez who also goes by Chicho.
Q. How did you determine that Victor Hernandez was the source of ...

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