United States v. DeVargas
| Decision Date | 10 January 2022 |
| Docket Number | CR 21-0857 JB |
| Parties | UNITED STATES of America, Plaintiff, v. Eusebio Ike DEVARGAS, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Fred J. Federici, Acting United States Attorney, Holland Kastrin, Timothy Trembley, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Carter B. Harrison, IV, Nicholas Thomas Hart, Harrison & Hart, LLC, Albuquerque, New Mexico, Attorneys for the Defendant.
THIS MATTER comes before the Court on: (i) the United States’ Motion in Limine to Exclude Defendant's Self-Serving Statements as Inadmissible Hearsay, filed October 20, 2021 (Doc. 45)("First MIL"); (ii) the United States’ Motion in Limine to Exclude Evidence of Possible Penalties, filed October 20, 2021 (Doc. 46)("Second MIL"); (iii) the United States’ Motion in Limine to Prohibit Unfounded Allegations of Government Misconduct or Irrelevant Challenges to the Quality of the Government's Investigation, filed October 22, 2021 (Doc. 48)("Third MIL"); (iv) the United States’ Motion in Limine to Prohibit Discussion of Defense Exhibits Not Previously Provided to the United States, filed October 22, 2021 (Doc. 49)("Fourth MIL"); (v) the United States’ Motion in Limine to Prohibit Evidence of Defendant's Personal Beliefs About the Second Amendment, filed November 5, 2021 (Doc. 62)("Fifth MIL"); (vi) the United States’ Motion in Limine Regarding Admission of Defendant's Prior Conviction Documents, filed November 5, 2021 (Doc. 63)("Sixth MIL"); (vii) the Defendant's Motion to Dismiss, filed November 9, 2021 (Doc. 71)("MTD"); (viii) the Defendant's First Motion to Suppress Evidence, filed November 9, 2021 (Doc. 72)("First MTS"); (ix) the Defendant's Second Motion to Suppress Evidence, filed November 10, 2021 (Doc. 74)("Second MTS"); and (x) the Defendant's Third Motion to Suppress, filed November 9, 2021 (Doc. 73)("Third MTS").1
The Court held an evidentiary hearing on December 28, 2021. See Clerk's Minutes at 1, filed December 28, 2021 (Doc. 117). The primary issue is whether the Court should dismiss the Superseding Indictment, filed October 26, 2021 (Doc. 53)("Indictment"), against Defendant Eusebio Ike DeVargas for being a felon in possession of a firearm, because (i) N.M.S.A. § 31-13-1, which holds that a person with a felony conviction cannot hold public office, violates the New Mexico Constitution, and, therefore, DeVargas’ civil rights were restored after his 1992 conviction, so it cannot serve as a predicate offense for 18 U.S.C. § 922(g) ; and (ii) after DeVargas served his suspended sentence after his 2018 conviction, his civil rights were automatically restored and therefore, DeVargas’ 2018 conviction cannot serve as a predicate offense for 18 U.S.C. § 922(g). The Court concludes that the Court should not dismiss the Indictment, because (i) although the Court determines that the Supreme Court of New Mexico would conclude that N.M.S.A. § 31-13-1 is unconstitutional, and therefore DeVargas’ civil rights were restored following his 1992 conviction, (ii) DeVargas’ civil rights were not restored following his suspended sentence's completion on his 2018 conviction, and it can, therefore, serve as a predicate offense for 18 U.S.C. § 922(g) ; and, (iii) for the reasons stated on the record at the December 28, 2021, hearing, the Court will grant in part and deny in part the First MIL, will grant the Second MIL, will grant in part and deny in part the Third MIL, will grant the Fourth MIL, will grant in part and deny in part the Fifth MIL, will grant in part and deny in part the Sixth MIL, and will deny the First MTS, Second MTS, and Third MTS.
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ( ). "[H]earsay testimony is admissible at suppression hearings ... and should be considered by a district court[.]" United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004) (citing United States v. Matlock, 415 U.S. 164, 173, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ).2 The Court takes its facts from the Criminal Complaint, filed May 17, 2021 (Doc. 1)("Complaint"), the Second MTS, Amended Application for a Warrant by Telephone or Other Reliable Electronic Means, filed November 10, 2021 (Doc. 74-4)("Search Warrant Application"), the Third MTS, and the evidence and arguments made at the December 28, 2021, evidentiary hearing. The Court recognizes that, insofar as the Court draws facts from the Complaint, these facts largely reflect the United States’ version of events.
1. On January 7, 2021, Rio Rancho Police Department Officer Petross observed a Nissan truck with an expired registration traveling near Rio Rancho, New Mexico. See Complaint ¶ 5, at 3.
2. Petross performed a traffic stop on the Nissan truck, and identified DeVargas as the driver. See Complaint ¶ 6, at 3.
3. Petross noticed an odor of alcohol from the vehicle, and DeVargas told Petross that he had one shot of vodka approximately two hours before the stop. See Complaint ¶ 6, at 4.
4. Before conducting a Standard Field Sobriety Test, Petross asked DeVargas if he had any weapons on him, and DeVargas stated that he had a firearm. See Complaint ¶ 7, at 4.
5. DeVargas showed no signs of impairment during the Sobriety Test, and Petross returned DeVargas’ firearm and released him from the scene. See Complaint ¶ 8, at 4.
6. Shortly thereafter, Petross realized that DeVargas had a felony conviction and should not possess a firearm, but officers could not relocate DeVargas. See Complaint ¶ 8, at 4.
7. On April 10, 2021, Bernalillo County Sheriff's Office Field Services Deputy Alfred Duchaussee observed DeVargas wearing dark clothing riding a red bicycle near the intersection of 2nd St. NW and Candelaria St. NW in Albuquerque, New Mexico. See Complaint ¶ 9, at 4.
8. DeVargas was riding southbound on 2nd St. without a front mounted head light or rear reflector. See Complaint ¶ 9, at 5.
9. When Duchaussee approached DeVargas, DeVargas pedaled faster and turned down Veranda St., which is a dead-end road. See Complaint ¶ 10, at 5.
10. DeVargas turned around, pedaled past Duchaussee and stated: "I did nothing wrong." Complaint ¶ 11, at 5.
11. Duchaussee attempted to apprehend DeVargas, who continued to state, "I did nothing wrong," and resist Duchaussee. Complaint ¶ 11, at 5-6.
12. DeVargas informed Duchaussee that he had a weapon, and Duchaussee approached and handcuffed DeVargas. See Complaint ¶ 11, at 5-6.
13. DeVargas informed Duchaussee that the weapon was in his front pocket, and Duchaussee recovered a firearm from DeVargas’ pocket. See Complaint ¶ 12, at 6.
14. On May 27, 2021, the Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court in the District of New Mexico, issued a search warrant for DeVargas’ residence. See Second MTS at 4.
15. The United States then sought to expand the scope of the search warrant to another building, called Superior Automotive, located on the same property. See Second MTS at 4.
16. The Search Warrant Application alleges that DeVargas is a member of the Brew Town Locos3 gang and seeks to search his residence for evidence of firearms, drug trafficking, and gang activity. See Second MTS at 4.
17. The Search Warrant Application notes that the FBI Violent Crime Gang Task Force and Albuquerque Police Department Gang Unit have been investigating the Brew Town gang for approximately two years. See Search Warrant Application ¶ 6, at 2.
18. The Search Warrant Application states that DeVargas, among others, is suspected of participating in a conspiracy to distribute controlled substances to further Brew Town's objectives and purposes. See Search Warrant Application ¶ 7, at 3.
19. The Search Warrant Application further states that DeVargas, among others, is "currently being sought on U.S. District Court arrest warrants related to this investigation." Search Warrant Application ¶ 9, at 4.
20. The Search Warrant Application seeks "to search the premises the[ ] fugitives are associated with to apprehend and bring them before the court," and lists DeVargas’ residence as a premises to search. Search Warrant Application ¶¶ 9-10, at 4-5.
21. In identifying the probable cause to search DeVargas’ residence, the Search Warrant Application states:
EUSEBIO DEVARGAS is an associate of the BTL and has at least 12 prior arrests in New Mexico and Colorado. EUSEBIO DEVARGAS has prior felony convictions for murder and aggravated fleeing a law enforcement officer. EUSEBIO DEVARGAS is currently wanted on a U.S. District Court arrest warrant for being a felon in possession of a firearm ... and is currently on conditions of release in the related New Mexico State cas...
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