U.S. v. Leal

• Citation: 921 F.3d 951
• Decision Date: 22 April 2019
• Docket Number: No. 18-2083,18-2083
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gaspar LEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

921 F.3d 951

UNITED STATES of America, Plaintiff-Appellee,

v.Gaspar LEAL, Defendant-Appellant.

No. 18-2083

United States Court of Appeals, Tenth Circuit.

FILED April 22, 2019

Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for the Defendant–Appellant.

Jason Wisecup, Assistant U.S. Attorney (Fred Federichi, First Assistant U.S. Attorney with him on the brief), Albuquerque, New Mexico, for the Plaintiff–Appellee.

Before MATHESON, MURPHY, and CARSON, Circuit Judges.

MATHESON, Circuit Judge.

Gaspar Leal appeals from the district court's denial of his motion to dismiss the indictment. In his motion, he argued that the drug conspiracy charged in this case is the same conspiracy for which he was convicted in a previous case and that continued prosecution would violate his double jeopardy rights. The district court found the conspiracies were not interdependent, the indictment therefore charged a separate offense, and double jeopardy did not apply. We affirm.

I. BACKGROUND

A. Factual Background

The facts in this section are drawn from the factual findings in the district court's order, which were based largely on the Government's pleadings, and which recounted Mr. Leal's conduct in two drug transactions: (1) the Tapia Deal and (2) the Carmona Deal. The parties do not dispute the facts underlying Mr. Leal's first conviction or the facts supporting the indictment he sought to dismiss.

1. Tapia Deal

In 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") employed a confidential informant ("CI") to buy drugs in Albuquerque, New Mexico. An ATF agent told the CI to contact Mr. Leal.

On May 7, 2016, the CI went to Mr. Leal's home. While there, the CI told Mr. Leal he wished to make money buying and selling drugs and was interested in buying "an ounce or two" of methamphetamine or cocaine. ROA at 94.

On May 9, Mr. Leal referred the CI to a seller named "Pete." Mr. Leal said Pete could sell meth to the CI. The CI met Pete the following day, but Pete could sell him only 3.5 grams.

On May 12, after the CI told Mr. Leal he was disappointed with the amount of meth he had purchased from Pete, Mr. Leal sold the CI $40.00 worth of heroin and $30.00 worth of meth. Mr. Leal tried unsuccessfully to call other drug dealers to arrange a larger sale for the CI.

On June 8, Mr. Leal, then in jail on unrelated charges,¹ called the CI and gave him Bernadette Tapia's phone number. He said Ms. Tapia could sell drugs to the CI. Ms. Tapia's husband, Christopher Apodaca, who was in jail with Mr. Leal, had given her permission to sell drugs to the CI.

Later that day, the CI and an undercover ATF agent met with Ms. Tapia and her daughter, Candace Tapia, and bought two ounces of meth from them. The ATF deposited $60.00 into Mr. Leal's jail commissary account for arranging the deal.

2. Carmona Deal

On July 21, 2016, Mr. Leal called the CI from prison² and gave him Jose Casillas's phone number. When the CI contacted Mr. Casillas and asked to buy meth, Mr. Casillas offered to put the CI in touch with an unidentified woman. The next day, Erika Barraza texted the CI.

On July 24, the CI called Ms. Barraza. She told him that her boyfriend, Luis Arreola-Palma, was in prison with Mr. Leal and had instructed her to contact him. The same day, Mr. Casillas conducted a conference telephone call with the CI, Mr. Leal, and Mr. Arreola-Palma. Mr. Arreola-Palma told the CI to contact his cousin, Daniel Carmona, who could sell an ounce of meth to the CI. Mr. Leal gave Mr. Carmona's telephone number to the CI and asked the CI to send him money. The CI called Mr. Carmona to arrange the transaction.

On July 25, the CI and an undercover ATF agent purchased more than 50 grams of methamphetamine from Mr. Carmona. On August 3, the CI and an undercover ATF agent again purchased more than 50 grams of methamphetamine from Mr. Carmona.

B. Procedural Background

1. Tapia Indictment and Trial

On July 12, 2016, a grand jury indicted Mr. Leal, Bernadette and Candace Tapia, and Brandon Candelaria (Candace Tapia's boyfriend) with (1) conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 ; and (2) distribution of more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The indictment alleged Mr. Leal and the sellers conspired on or about June 8, 2016.

On December 20, 2017, a jury convicted Mr. Leal on the conspiracy count and acquitted him on the distribution count.

2. Carmona Indictments

On August 9, 2016, a grand jury indicted Mr. Leal, Mr. Carmona, and Mr. Arreola-Palma with (1) conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 ; and (2) distributing 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

After the December 20, 2017 verdict in the Tapia case, the grand jury returned a superseding indictment in the Carmona case. It added another distribution count and charged Mr. Leal with a conspiracy beginning "on a date unknown, but not later than July 21, 2016, and continuing to on or about August 3, 2016." ROA at 100.

3. Motion to Dismiss

On March 6, 2018, Mr. Leal moved to dismiss the conspiracy count of the superseding indictment under Federal Rule of Criminal Procedure 12(b). He said the activity underlying the Tapia conviction and the Carmona superseding indictment was part of one larger conspiracy. He argued that trying him again for conspiracy would therefore violate double jeopardy.

"In essence," he said, "the first jury had to have found the necessary criminal agreement, formed on June 8, 2016, between Mr. Leal, the government informant, and others, to convict Mr. Leal in trial one." Id. at 62-63. Because the superseding indictment charged a conspiracy "beginning at a date unknown," Mr. Leal claimed both conspiracy charges stemmed from the same agreement, making them the same offense for double jeopardy purposes. Id. at 58; see also id. at 63 ("No doubt, the criminal agreements in the indictment for trial one and for trial two, are the same.").³

4. District Court Ruling

The district court denied the motion. First, it said the transactions were not part of the same chain conspiracy because there was "no evidence that the members of the Tapia Deal and the Carmona Deal entered into a single conspiracy with each other. Leal is the only common member of those deals." United States v. Leal , 330 F.Supp.3d 1257, 1278 (D.N.M. 2018). The transactions were "discrete and parallel." Id. at 1279. Second, the two deals were not part of a single wagon-wheel conspiracy because they were not interdependent—that is, "the success of one deal does not depend on the success of the other." Id.⁴

Mr. Leal timely appealed.

II. DISCUSSION

Mr. Leal argues the district court erred in finding the Tapia and Carmona deals lacked the requisite interdependence to make each of them part of one conspiracy. Proceeding to trial on the conspiracy count in the Carmona case would, he contends, violate double jeopardy because he would be prosecuted for the same conspiracy he was convicted of in the Tapia trial. The following discussion shows that his argument fails under conspiracy law and the record.

A. Jurisdiction and Standard of Review

1. Jurisdiction

We have appellate jurisdiction over this interlocutory appeal. In Abney v. United States , 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court held that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds falls within the collateral order exception to the final-judgment rule and is therefore immediately appealable under 28 U.S.C. § 1291. Id. at 662, 97 S.Ct. 2034. The Court explained that holding otherwise would require the defendant to "endure the personal strain, public embarrassment, and expense of a criminal trial" that he asserts violates the Double Jeopardy Clause of the Fifth Amendment. Id. at 661, 97 S.Ct. 2034.

Here, as in Abney , "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee." Id. at 659, 97 S.Ct. 2034 ; see also United States v. Tucker , 745 F.3d 1054, 1064 (10th Cir. 2014) (stating "a Double Jeopardy Clause claim would be rendered meaningless if motions to dismiss on double jeopardy grounds were not immediately reviewable"); United States v. Perez-Herrera , 86 F.3d 161, 163 (10th Cir. 1996) (exercising jurisdiction over an interlocutory appeal from a pretrial order in a double jeopardy case).

2. Standard of Review

"We generally review a district court's denial of a motion to dismiss a criminal indictment for abuse of discretion." United States v. Berres , 777 F.3d 1083, 1089 (10th Cir. 2015). "We review the factual findings underlying the defendant's double jeopardy claim for clear error." United States v. Rodriguez-Aguirre , 73 F.3d 1023, 1024-25 (10th Cir. 1996). "The district court's ultimate determination regarding double jeopardy is, however, a question of law we review de novo." Id . at 1025.

On whether there were one or two conspiracies, which Mr. Leal raised in his motion to dismiss, we review the district court's finding about interdependence for clear error. See United States v. Mintz , 16 F.3d 1101, 1106 (10th Cir. 1994) (concluding that district court's finding that "the ultimate goal [of the two conspiracies] was to mix the two types of marijuana for sale in New York and that [the two conspiracies] were interdependent" was not "clearly erroneous").

B. Legal Background

1. Conspiracy

To prove a conspiracy, the government must show that "(1) two or more persons agreed to violate the law, (2) the defendant knew the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily participated in the conspiracy, and (4) the alleged co-conspirators were interdependent." United States v. Pickel , 863 F.3d 1240, 1251 (10th Cir. 2017) (brackets and quotations omitted). Because "the gist of the crime of...