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United States v. Borda

United States District Court, District of Columbia

April 22, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTIAN FERNANDO BORDA, et al., Defendants

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[Copyrighted Material Omitted]

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For DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, Non-Party Petitioner: Maria-Claudia T. Amato, CORPORATION COUNSEL FOR THE DISTRICT OF COLUMBIA, Washington, DC.

For CHRISTIAN FERNANDO BORDA, also known as TONY, Defendant: A. Eduardo Balarezo, LEAD ATTORNEY, BALAREZO LAW, Washington, DC; Carmen D. Hernandez, Highland, MD; William B. Purpura, Jr., LAW OFFICE OF PURPURA & PURPURA, Baltimore, MD.

For ALVARO ALVARAN-VELEZ, also known as MARCOS, Defendant: A. Eduardo Balarezo, LEAD ATTORNEY, BALAREZO LAW, Washington, DC; Carmen D. Hernandez, Highland, MD; David Walker Bos, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC.

For HUGO BARRERA-CAVAZOS, Defendant: Earl N. Mayfield, III, LEAD ATTORNEY, THE LEWIS FIRM, PLLC, Washington, DC; Andres Sanchez-Ross, PRO HAC VICE, Mike DeGeurin, FOREMAN, DeGEURIN & DeGEURIN, Houston, TX.

For JUAN JAIME MONTOYA-ESTRADA, also known as JULIAN, Defendant: Mark John Carroll, LEAD ATTORNEY, MARK JOHN CARROLL, ESQUIRE, Potomac, MD.

For ALEXIS BARRERA-PARRA, also known as MATEMATICO, Defendant: Jorge Rios-Torres, Annandale, VA; Oscar Arroyave, PRO HAC VICE, LAW OFFICES OF OSCAR ARROYAVE, P.A., Coconut Grove, FL.

For USA, Plaintiff: Paul Warren Laymon, Jr., LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Narcotic and Dangerous Drug Section, Washington, DC; Robert John Raymond, LEAD ATTORNEY, Charles Dee Griffith, Jr., U.S. DEPARTMENT OF JUSTICE, Criminal Division, Narcotic and Dangerous Drug Section, Washington, DC.

OPINION

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MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

On December 9, 2010, Defendants Christian Fernando Borda (" Borda" ) and Alvaro Alvaran-Velez (" Alvaran" ) were convicted under the Controlled Substances Import and Export Act, 21 U.S.C. § § 951 et seq., of conspiring to distribute five kilograms or more of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See Verdict Form as to Borda [Dkt. No. 207]; Verdict Form as to Alvaran [Dkt. No. 209]; 21 U.S.C. § § 959, 960, 963.

Defendants moved for judgment of acquittal under Federal Rule of Criminal Procedure 29, which the Court denied in a Memorandum Opinion on March 9, 2011 [Dkt. No. 238]. Defendants next moved for a new trial under Federal Rule of Criminal Procedure 33, which the Court denied in a Memorandum Opinion on April 27, 2011 [Dkt. No. 249]. Defendants then moved to vacate the jury verdict and to dismiss the indictment under the Fifth Amendment's Due Process Clause and Federal Rule of Criminal Procedure 6(e), which the Court denied in a Memorandum Opinion on November 27, 2012 [Dkt. No. 376].

This matter is now before the Court on Defendants' Joint Motion to Dismiss for Brady Violations [1] or, in the Alternative,

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for a New Trial [Dkt. No. 354]. Upon consideration of the Motion, the Opposition [Dkt. No. 360], the Reply [Dkt. No. 365], the Sur-Reply [Dkt. No. 366], the Sur-Sur-Reply [Dkt. No. 367], the entire record herein, and for the reasons set forth below, Defendants' Joint Motion to Dismiss is denied.

I. Background

Defendants were each convicted of conspiring, beginning in January 2005 and continuing to at least October of 2005, to distribute five or more kilograms of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See 21 U.S.C. § § 959, 963. At trial, Defendants did not dispute that they had distributed cocaine during that period, but argued that they neither knew nor intended that the cocaine would be unlawfully imported into the United States.

The Government offered evidence of three separate drug deals in 2005. The first deal, " Palm Oil One," took place between January and May 2005. In Palm Oil One, Defendants Borda and Alvaran arranged to ship 1,553 kilograms of cocaine concealed in drums of palm oil from Cartagena, Colombia to Puerto Progreso, Mexico. Upon the shipment's arrival in Puerto Progreso, an associate named Raul Valladeres, or " Junior," contacted Defendants to say that he could transport the cocaine to Monterrey, Mexico and would pay Borda $9,100 per kilogram within ten days after receipt of the drugs. Trial Transcript (" Tr." ) at 18:24-20:18, 25:10-28:15 A.M. Session, Nov. 4, 2010. Defendants agreed to Junior's proposal, and Junior transported the cocaine north to Monterrey. Id.; Gov't Ex. 40b at 3-4.

The Government introduced evidence that Monterrey is located less than two hours away from the United States border. The Government's evidence showed that Monterrey is an inland city in Mexico with insufficient demand for a delivery of cocaine as large as the Palm Oil One load. See Gov't Ex. 40b at 6 (Defendant Alvaran stated that Monterrey is " not a market for personal use" ).

The Government also introduced the following evidence to prove that Defendants were aware that Junior was trying to sell the cocaine across the Mexican border into the United States.

First, on June 15, 2005, Defendant Alvaran met with the Government's confidential informant, Camilo Suarez (" Suarez" ), after Junior had failed to pay Defendants for Palm Oil One within ten days of his receipt of the drugs. Suarez testified at trial that, in the course of that meeting, Alvaran expressed his understanding that the cocaine had been moved north of Mexico City to Monterrey. Tr. at 22:2-9 P.M. Session, Nov. 15, 2010; Gov't Ex. 34b.

Second, on July 20, 2005, Borda met with Alvaran and Suarez to discuss Junior's progress in making payments for Palm Oil One. Suarez defended Junior's delay to Borda by explaining that the " market went bad because the border got, [] harder for him." Gov't Ex. 40b at 3-7. Defendants then discussed the conditions at the border in further detail. Id. At one point, Borda noted that he understood Junior's difficulties because he had once been a drug dealer in the United States. Id. at 10. ...


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