United States v. Apodaca

• Citation: 275 F.Supp.3d 123
• Decision Date: 17 August 2017
• Docket Number: Criminal Action No. 14–57 (BAH)
• Parties: UNITED STATES of America, Plaintiff, v. Agustin Flores APODACA and Panfilo Flores Apodaca, Defendants.
• Court: U.S. District Court — District of Columbia

275 F.Supp.3d 123

UNITED STATES of America, Plaintiff,

v.Agustin Flores APODACA and Panfilo Flores Apodaca, Defendants.

Criminal Action No. 14–57 (BAH)

United States District Court, District of Columbia.

Signed August 17, 2017

Andrea Goldbarg, Jason James Ruiz, Michael Waits, U.S. Department of Justice, Washington, DC, for Plaintiff.

Elita C. Amato, Law Offices of Elita C. Amato, Esq., Arlington, VA, Jasmin Mize, King, Campbell & Poretz, Joseph D. King, King, Campbell & Poretz PLLC, Alexandria, VA, Rene A. Sotorrio, Law Offices of Rene A. Sotorrio, P.A., Coral Gables, FL, Robert A. Feitel, Law Office of Robert Feitel, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The defendants, Agustin Flores Apodaca, also known as "El Nino," "El Barbon," and "El Ingenierio," and Panfilo Flores Apodaca, also known as "Charmin," were indicted separately on two substantively similar counts of conspiring to commit drug trafficking offenses, including distribution of large quantities of cocaine, methamphetamine, heroin, and marijuana, with the intent to unlawfully import those controlled substances into the United States, as charged in Count One, in violation of 21 U.S.C. §§ 959, 960, 963, and 18 U.S.C. § 2 ; and using, carrying and brandishing a firearm, during and in relation to one or more drug trafficking crimes, as charged in Count Two, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(B)(ii), and 2.¹ At the government's request, over the defendants' objections, the Court consolidated the defendants' criminal cases for trial, see Minute Order (dated Jan. 6, 2017), which trial is scheduled to begin on September 18, 2017.

Pending before the Court are twelve pretrial motions filed by each defendant and by the government. These motions are: (1) the defendants' multi-pronged challenges to the government's admission in its case-in-chief of court-authorized interceptions of Panfilo's electronic communications and other co-conspirator statements, including (a) Agustin's Motion to Compel Discovery ("Agustin's Discovery Mot."), ECF No. 40; Panfilo's Motion to Join and Supplement Agustin's Motion to Compel Discovery ("Panfilo's Discovery Mot."), ECF No. 41, and an amendment thereto ("Panfilo's Am. Discovery Mot."), ECF No. 45; (b) the defendants' Joint Motion to Suppress Title III Intercepts ("Defs.' Jt. Mot. Suppress Intercepts"), ECF No. 33; (c) Agustin's Motion in Limine to Preclude Introduction of Post–Arrest Title III Intercepts ("Agustin's MIL Preclude Post–Arrest Intercepts"), ECF No. 51; (d) the defendants' Joint Motion for Pretrial Hearing of Admissibility of Alleged Co–Conspirator Statements ("Defs.' Jt. Hr'g Mot."), ECF No. 52; and (e) Agustin's Motion to Enforce the Rule of Specialty ("Agustin's Specialty Mot."), ECF No. 54; (2) Agustin's Motion to Suppress Statements ("Agustin's Suppress Stms. Mot."), ECF No. 48; (3) the defendants' Joint Motion to Dismiss Count Two of Indictments ("Defs.' Count Two Mot."), ECF No. 50; (4) the defendants' separate Motions to Strike Improper Aliases, ECF Nos. 53 and 56; and, finally, (5) the government's Motion to Introduce Co–Conspirator Statements, Other Crimes Evidence at Trial, and Allow Lead Agents at Counsel Table ("Gov't's Mot."), ECF No. 55. Following a summary of the relevant factual background proffered by the government in briefing papers, these motions are addressed in the following sequence: Part II discusses three of the defendants' motions challenging the introduction of intercepted communications; Part III addresses Agustin's motion to suppress the statements he made to the U.S. law enforcement agents on two occasions; and, lastly, Part IV discusses the defendants' joint and joined motions to dismiss the firearms charge in Count Two of the indictments and to strike reference to aliases in the indictments. Pending supplemental briefing, the Court reserves ruling on five motions in full or in part: (1) the Defendants' Joint Motion to Suppress Title III Intercepts, ECF No. 33; (2) Agustin's Motion to Compel Discovery, ECF No. 40; (3) Panfilo's Motion to Join and Supplement Agustin's Motion to Compel Discovery, ECF No. 41, (4) Panfilo's Amended Motion to Join and Supplement Agustin's Motion to Compel Discovery, ECF No. 45; and (5) the portion of the government's omnibus motion seeking admission of intrinsic or other bad acts, under Federal Rule of Evidence 404(b), ECF No. 55.²

I. BACKGROUND

The government proffers that, based on information provided to the Federal Bureau of Investigation ("FBI") Office in Washington State by a confidential informant ("CI") in July 2010, the FBI was able to identify a distribution cell of a larger Mexican drug trafficking organization ("DTO"), known as the Meza Flores DTO ("MF–DTO"), which was based in Guasave, Sinaloa, Mexico, and worked closely with the Hector Beltran Leyva DTO ("BL–DTO") to traffic tonnage quantities of cocaine, methamphetamine, heroin, and marijuana into the United States for distribution in the states of Arizona and Washington, and elsewhere in the United States. See Gov't's Mot. Consolidate Cases for Trial ("Gov't Consolidation Mot.") at 1–2, ECF No. 16. As set forth in the government's affidavit in support of Agustin's extradition from Mexico, the government identified Agustin as a longtime member of the BL–DTO and as the person who introduced his nephew, Fausto Isidro Meza Flores, also known as "Chapo Isidro" ("Chapo Isidro"), into the organization, and also worked with his brother, Salome Flores Apodaca, also known as "Pelon" and "Fino," to distribute cocaine, methamphetamine, heroin, and marijuana into the United States. See Agustin's Specialty Mot., Ex. 1 ¶ 5 (Gov't's Aff. Supp. Extradition of Agustin Flores Apodaca, dated Oct. 9, 2012), ECF No. 54–2. Chapo Isidro is viewed by the government as the leader of the MF–DTO, while his uncles, both defendants Agustin and Panfilo, and Salome, participated in the distribution of illegal drugs from Mexico into the United States. See Gov't's Mot. at 5. In addition, Agustin's role within the MF–DTO is described by the government as "synthesizing large volumes of methamphetamine form pre-cursor chemicals," while "Panfilo grew and harvested marijuana, and also coordinated logistics for the shipments of narcotics into the United States for the DTO." Id. Both Agustin and Panfilo "carried firearms" and "employed armed gunmen for protection," and "were also directly involved in acts of violence including shootouts against rival cartel members and kidnapping individuals who were unable to pay drug debts." Id. ; see also Gov't's Opp'n Agustin's MIL Preclude Post–Arrest Intercepts at 2–3, ECF No. 61.

The government attributes three seizures of illegal narcotics in 2010 and 2011 to the MF–DTO. Gov't's Consolidation Mot. at 7. First, on September 2, 2010, U.S. law enforcement seized two pounds of methamphetamine in the gas tank of a silver BMW in Utah, after recovering information from a CI that Donato Valle Vega, who owned a used car lot in Centralia, Washington, and Salome had discussed selling narcotics in the Washington area and sending guns to Mexico. Id. at 8. Prior to the seizure, the FBI surveilled Vega loading a brown Chevrolet Impala onto a transportation truck, which was subject, on August 2, 2010, to a "sneak and peek" search that revealed approximately USD $56,000 in bundles and two drug ledgers in the Impala. Id. Law enforcement observed Salome arrive at the truck. Id. On September 1, 2010, two men were observed loading a package into a silver BMW at Vega's used car lot, leading to the traffic stop and recovery of the methamphetamine in the gas tank. Id.

Vega subsequently consented to a search of his used car lot in Centralia, Washington, where law enforcement made the second seizure, on September 2, 2010, of thirty-three pounds of methamphetamine and four kilograms of cocaine. Id. Vega then, between September 2 and 8, 2010, made consensually recorded calls with Agustin discussing: (1) the purchase of fifty caliber weapons with United States currency, and as a trade for methamphetamine, a deal Agustin said he would call Salome directly to discuss, id. at 9; and (2) customers, quantities, and pricing for kilograms of cocaine, which discussions were also recorded with Salome, id. On September 14, 2010, Salome tried to sell to a confidential informant of the Drug Enforcement Administration ("CI–2") approximately thirty pounds of methamphetamine and four kilograms of cocaine at a meeting held in Phoenix, Arizona. Id. Salome arrived at this meeting in the brown Impala originally surveilled on Vega's used car lot. Id.

Finally, on June 10, 2011, Mexican authorities seized 2,800 kilograms of marijuana in Nogales, Mexico, following receipt of information provided by another confidential informant ("CI–3"), who reported being present when Agustin, Panfilo, and Salome discussed "their shared responsibilities for drug trafficking to include money laundering, murder, kidnapping, firearms, and extortion." Id. CI–3 met with Agustin and Chapo Isidro to arrange the shipment of 2,800 kilograms of marijuana via Nogales to the United States. Id. at 9–10. Prior to the shipment, Agustin escorted CI–3 to Chapo Isidro's ranch, "where there were approximately 300 gunmen present, armed with automatic rifles, grenades and rocket propelled grenades." Id. at 10. After Chapo Isidro approved the transaction, the marijuana shipment was sent to Nogales for transport by another confidential informant ("CI–4"), who was "unable to cross the drugs into the United States." Id. About thirty days later, the Mexican Army seized the marijuana in Nogales. Id.

As a result of this seizure, Chapo Isidro, Agustin, and Panfilo held CI–3, CI–4, and a third informant, ("CI–5"), responsible for paying off the debt for the seized marijuana, and Agustin and Panfilo allegedly tried to take control of CI–3's properties as part of the debt repayment. Id. In October 2011, Agustin...