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United States v. Lerma-Plata

United States District Court, District of Columbia

January 30, 2013

UNITED STATES of America
v.
Gilberto LERMA-PLATA, Defendant.

Page 153

Darrin Lee McCullough, Adrian Rosales, U.S. Department of Justice, Washington, DC, for United States of America.

Noe Domingo Garza, Jr., Law Office of Noe D. Garza, Jr., E. Dale Robertson, Robertson Law Firm, Brownsville, TX, Carlos J. Vanegas, Federal Public Defender, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Gilberto Lerma-Plata (" Defendant" ) is charged with being part of a conspiracy, from on or about 2006 to on or about July 29, 2011, the date of Defendant's indictment, whose objective was to distribute five kilograms or more of cocaine and 1,000 kilograms or more of marijuana, knowing and intending that said substances would be imported into the United States. Presently before the Court is the Government's [19] Motion in Limine to Introduce Evidence at Trial of Defendant's Other Crimes. The Government seeks to admit the following two categories of evidence: (1) evidence that Defendant purportedly engaged in a conspiracy to launder money and traffic firearms as part of the charged drug conspiracy, and (2) evidence of the Defendant's alleged prior drug trafficking activity from 1998 to

Page 154

2001. The Government contends that the first category of evidence constitutes " intrinsic" evidence of the charged conspiracy. In the alternative, the Government argues that this evidence is also admissible as " other crimes" evidence pursuant to Federal Rule of Evidence 404(b). Regarding the second category of evidence, the Government contends that the evidence is admissible as " other crimes" evidence pursuant to Rule 404(b), to show intent, knowledge, and the development of Defendant's relationship with a co-conspirator. For the reasons stated below, upon consideration of the pleadings,[1] the relevant legal authorities, and the record as a whole, the Government's motion is GRANTED-IN-PART and HELD-IN-ABEYANCE-IN-PART. Specifically, the Court finds that the first category of evidence— that relating to Defendant's purported involvement in a conspiracy to launder money and traffic firearms— is " intrinsic" to the conspiracy with which Defendant is charged, and is thus admissible on that basis.[2] Regarding the second category of evidence— that relating to Defendant's alleged drug trafficking activity from 1998 to 2001— the Court shall conditionally admit this evidence pursuant to Rule 404(b), but shall defer judgment until trial as to whether it should be excluded under Federal Rule of Evidence 403.

I. BACKGROUND

Defendant's indictment charges that from in or around 2006 and continuing thereafter up to and including July 29, 2011, in the countries of Mexico, the United States, and elsewhere, Defendant did knowingly and unlawfully conspire with others to commit the following offenses against the United States: (1) to knowingly and intentionally distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, into the United States and (2) to knowingly and intentionally distribute 1,000 kilograms or more of a mixture and substance containing a detectable amount of marijuana, a Schedule I controlled substance, intending and knowing that such substance would be unlawfully imported into the United States, all in violation of 21 U.S.C. §§ 959, 960, 963, and 18 U.S.C. § 2.

According to the Government, Defendant was employed as Commander of the State Police in the city of Miguel Aleman, Tamaulipas, Mexico, and used this position of authority to engage in drug trafficking activities with a Mexican drug cartel known as " The Company." Gov't Mot. at 1. The Government's theory of the conspiracy is, generally speaking, that Defendant received payments from members of The Company in return for protecting members of The Company conducting drug trafficking activities in the regions that Defendant, as a Police Commander, was charged to protect. Id. The Government also intends to prove at trial that Defendant further supported the mission of The Company by becoming directly involved in the importation of cocaine and marijuana into the United States, the transportation of drug proceeds back to Mexico from the United States, and the acquisition of firearms

Page 155

for members of The Company. Id. at 3.

The Government contends that pursuant to a judicially authorized wiretap, Defendant was intercepted discussing shipments of cocaine and marijuana, the acquisition of weapons, and the transportation of bulk cash with a prominent member of The Company, Samuel Flores-Borrego (" Flores" ). Id. The Government alleges that prior to becoming a leading member of The Company, Flores was a police agent in Miguel Aleman, who served under Defendant's supervision. Id. at 2. Once Flores climbed the ranks of The Company, he allegedly controlled The Company's operations in and around Miguel Aleman, obtained and provided information to members of The Company regarding certain law enforcement operations directed against The Company, and was actively involved in managing the activities of The Company in Mexico, including the coordination of cocaine and marijuana shipments into the United States, as well as the receipt of bulk currency shipments into Mexico from the United States. Id.

In the instant motion, the Government has given notice of its intent to introduce two categories of " other crimes" evidence against the Defendant in support of the above allegations. First, the Government seeks to admit evidence that during the time of the charged drug conspiracy, from on or about 2006 to on or about July 29, 2011, Defendant conspired to launder narcotics proceeds and traffic firearms with and on behalf of members of Mexican drug-trafficking organizations, the Gulf Cartel and " Los Zetas," in order to support their drug trafficking activities. According to the Government, it will prove at trial that " Los Zetas" was an armed faction of The Company, comprised of ex-military personnel who acted as enforcers and hit-men to protect the drug trafficking territory of The Company from rival drug traffickers. Second, the Government seeks to admit evidence showing that, from on or about 1998 to on or about 2001, Defendant received payments from drug traffickers in the city of Miguel Aleman, Tamaulipas, Mexico, while in his role as Commander of the State Police, in exchange for protection for their drug trafficking activities.

II. LEGAL STANDARD

Federal Rule of Evidence 404(b) provides that " [e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," but " may be admissible for another purpose," including proving " motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." FED.R.EVID. 404(b)(1), (2). The rule is one of " inclusion rather than exclusion." United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Importantly, the Government need not show that the evidence is being offered for one of the purposes specifically enumerated in the rule. Id. at 929-30. Rather, the Government need only show that it is offered for a valid purpose other than to prove a person's propensity to commit similar acts. Id. at 929 (" Although the first sentence of Rule 404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of other crimes evidence in but one circumstance— for the purpose of proving that a person's actions conformed to his character." ) (internal marks and citation omitted).

The Rule proscribes certain procedures for prosecutors to provide notice of proposed 404(b) evidence to the defense and also entitles the defendant to a limiting ...


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