Opinion
No. 2:12-CR-0039 TLN
05-08-2013
UNITED STATES OF AMERICA, Plaintiff, v. LUIS MEJIA-CALDERON Defendant.
JOSEPH SCHLESINGER Acting Federal Defender DOUGLAS BEEVERS Assistant Federal Defender Attorney for Defendant LUIS MEJIA-CALDERON BENJAMIN B. WAGNER United States Attorney Michael Beckwith Assistant United States Attorney
JOSEPH SCHLESINGER, Bar #87692
Acting Federal Defender
DOUGLAS BEEVERS, U.S.V.I. Bar #288639
Assistant Federal Defender
Designated Counsel for Service
801 I Street, 3rd Floor
Sacramento, California 95814
Telephone: (916) 498-5700
Attorney for Defendant
LUIS MEJIA-CALDERON
STIPULATION AND ORDER RELATING CASES
Local Rule 123
Judge: Hon. Troy L. Nunley
The parties request, pursuant to Local Rule 123, that case 2:12CR0046 GEB be related to U.S. v. Hernandez-Garcia and Mejia-Calderon, 2:12 CR 00039 TLN within the meaning of Local Rule 123(a). The case 2:12 CR 00039 involves allegations that Mr. Hernandez-Garcia and Mr. Mejia-Calderon conspired to distribute cocaine between December 1, 2011 to December 14, 2013. The indictment in case 2:12CR 0046 GEB alleges that on December 14, 2011, Mr. Mejia-Calderon traveled in interstate commerce to distribute the proceeds of the distribution of controlled substances. Mr. Mejia-Calderon's pre-sentence report in 2:12CR 0046 GEB shows that the informant who allegedly communicated with Mr. Hernandez-Garcia about drug distribution on December 1, 2011 was the same informant who went with Mr. Mejia-Calderon to pick up the money in Ohio that resulted in the interstate transportation of drug proceeds charges in 2:12 CR 0046 GEB. (PSR para. 4-6) According to he Pre-sentence report, the same informant was introduced to Mr. Mejia-Calderon by Mr. Hernandez-Garcia on December 3, 2011 and the informant said Mr. Hernandez-Garcia paid him $4000, that day. Paragraph 18 of the pre-sentence report recommends that the Court look to the Hernandez-Garcia conspiracy to calculate an estimate of the drug weight.
The pre-sentence report shows that the Government alleges that both cases involve the same transaction or events, and sentencing will involve the identical issue of calculating the drug weight. Mr. Mejia-Calderon's current case 2:12 CR 0046 GEB has a maximum sentence of 5 years, so the exact drug weight would not necessarily change the sentence. However, drug weight is still relevant to Bureau of Prisons classification. Reassignment to a single judge will also save judicial resources, because Mr. Mejia-Calederon's sentencing case (2:12CR 0046) involving transporting of proceeds of illegal activity is an open plea with no plea agreement and no minimum sentence. Neither case involves drugs that were seized, so the determination of guidelines offense level in both cases involves credibility determination regarding what the informant claims Mr. Mejia-Calderon told him while they were driving to pick up the money. Mr. Mejia-Calderon has a right to cross-examine the informant regarding the allegations in the pre-sentence report in sentencing in 2:12 CR 0046, and he also has a right to cross-examine the same informant about the same facts at trial in 2:12CR 0036 TLN. Having two judges would make it unavoidable to have the informant testify twice.
AUSA Beckwith has stated that he believes the cases should be related, but he did not do so because both were originally assigned to Judge Burrell in the original random case assignment.
According to Local Rule 123(c) the judge with the lower case number is authorized to reassign the higher case number case to himself.
Respectfully submitted,
JOSEPH SCHLESINGER
Acting Federal Defender
______________________
DOUGLAS BEEVERS
Assistant Federal Defender
Attorney for Defendant
LUIS MEJIA-CALDERON
BENJAMIN B. WAGNER
United States Attorney
______________________
Michael Beckwith
Assistant United States Attorney
ORDER
UPON GOOD CAUSE SHOWN and the stipulation of all parties it is ordered that case 2:12-CR-0046 GEB be related to U.S. v. Hernandez-Garcia and Mejia-Calderon, 2:12-CR-0039 TLN within the meaning of Local Rule 123(a).
______________________
Troy L. Nunley
United States District Judge