Opinion
Criminal Case No. 13-cr-00240-RM
2013-10-18
UNITED STATES OF AMERICA, Plaintiff, v. 1. JORGE LUIS JUARDO LOPEZ, aka Jorge, 2. HERUBEY RIZO HERNANDEZ, 3. JESSIE TAFOYA, and 4. BILLY SALVADOR TAFOYA, Defendants.
Judge Raymond P. Moore
ORDER ON MOTION TO RECONSIDER (ECF NO. 150)
THIS MATTER comes before the Court on the Government's Motion to Reconsider Order (Document #147) Suppressing Direct Testimony of Weight of Marijuana, filed as ECF No. 150 (the "Motion to Reconsider").
At a Trial Preparation Conference on October 16, 2013, the Court considered various motions filed by defendants, including Defendants' Second Joint Motion to Exclude Governments' Use of Lab Reports and Expert Testimony as to any Alleged Controlled Substances, ECF No. 131. The Court denied the motion to exclude. However, in the course of discussion of said motion, counsel for Defendant Billy Tafoya noted that laboratory reports provided to counsel contained no indication of the weight of the marijuana tested. And, as the charge pertaining to marijuana (Count One) carried a mandatory minimum triggered by weight, this omission was deemed of special significance.
Government counsel confirmed that weight information was not included in the expert report and indicated that it was his intention to introduce evidence as to weight through the testimony of an agent. When asked by the Court whether information as to weight had been made available to defense counsel, government counsel indicated that "[i]t has not been disclosed in discovery." Based on that representation, the Court ruled:
[W]ith the mandatory minimum being in play, and there being no discovery, whether through an expert report or otherwise as to the weight being in excess of the amount needed to trigger the mandatory minimum, at this point in time, with all that we've been through, I think it's appropriate to say that...the weight doesn't come in.
In its Motion to Reconsider, the government corrects this representation made in open court regarding information as to weight being available to defendants. Specifically, the government notes (i) that 220 pounds (100 kilograms) is the pertinent weight threshold for application of the mandatory minimum pled in Count One of the Superseding Indictment, and (ii) that the Complaint issued on May 28, 2013 contained numerous sworn statements by Special Agent Christian Mohr that the weight of marijuana in this case was approximately 600 pounds.
The Court has reviewed the Complaint and agrees it contains ample disclosure of the approximate weight of actual marijuana at issue in this matter. Moreover, the Court recalls that the affiant - Agent Mohr - testified at a motions hearing on August 21, 2013 attended by counsel for Defendant Billy Tafoya. (Counsel for Defendant Juardo-Lopez voluntarily absented herself from that portion of the hearing.) There, Agent Mohr referred to the drugs brought to the drug deal by DEA agents as "hundreds of pounds of marijuana...all actually marijuana."
Defendants have opposed any reconsideration in this matter and filed a response. The Court has reviewed the Response in Opposition to the Motion to Reconsider (ECF No. 152) filed by defendants and considered their contention that the Court's original order should stand.
Based on all of the foregoing, the Court concludes that adequate information as to the weight of marijuana - particularly as it pertains to the 21 U.S.C. §841(b)(1)(B)(vii) threshold - has been timely provided to defendants. Accordingly, it is hereby ORDERED:
THAT the Motion to Reconsider is hereby granted, the Order of exclusion is withdrawn, and the government may introduce lay testimony as to the actual weight of marijuana in this case.
Although the ruling herein renders moot that portion of Motion to Reconsider containing a "notice" of intention to weigh the subject marijuana during trial, the government is advised that it would be sheer folly to believe that it would be allowed to circumvent an Order excluding evidence in the manner proposed.
BY THE COURT:
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RAYMOND P. MOORE
United States District Judge