United States District Court, D. Colorado
ORDER REGARDING DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT OR IN THE ALTERNATIVE FOR A BILL OF
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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.
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).
MOTION TO DISMISS
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.
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).
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
Hernandez specifically takes issue with the following Agent
[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