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United States v. Alfaro

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CRIMINAL DIVISION


October 1, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE ALFARO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: The Honorable Manuel Real United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO STRIKE PORTIONS OF THE INDICTMENT AND FINDINGS THERETO

Having heard from plaintiff, the United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, and defendant PAUL CORTEZ JOVEL, by and through the authorized representative of his counsel of record, Michael Treman, at a hearing held before this Court on September 16, 2010, and good cause appearing, the Court hereby FINDS AS FOLLOWS

1. The Court read and considered Paul Cortez Jovel's Motion to Strike Portions of the Indictment (doc. 632) filed on August 30, 2010, and the government's opposition thereto.

2. The Court, after carefully considering the pleadings, declarations and documents filed by the parties, as well as the argument presented at the hearing, orally denied the defendant's Motion to Strike Portions of the Indictment. This Order will supplement the Court's oral ruling denying the motion. In connection with this Order, the Court makes the following Findings of Fact and Conclusions of Law.

3. On September 16, 2010, this Court held a hearing on the motion. Defendant appeared in person with his counsel of record. After affording the parties opportunity for argument, the Court denied defendant's Motion to Strike Portions of the Indictment. The Court considered the factors set forth in United States v. Ziskin, 360 F.3d 934 (9th Cir. 2003). The Court first finds that the prior conspiracy lasted four days as compared to the 14-year long conspiracy currently charged. Second, the Court finds that prior conspiracy took place at a single intersection, in contrast to the current conspiracy that encompassed much of Los Angeles. Third, the Court finds that the prior conspiracy involved two other co-conspirators, neither of whom are named in the current indictment, and the current indictment names 23 individuals not named in the prior conspiracy. Fourth, the Court finds that while there are overt acts common to both indictment, the Court considers United States v. Ingman, 541 F.2d 1329 (9th Cir. 1976) and rules that an action may well be in furtherance of two conspiracies. Finally, the Court finds that the current conspiracy involves the distribution of narcotics in substantially greater quantities, and a wider range of substances. Accordingly the Court finds that the previous conspiracy, and that which is currently charged in Count 16, are separate and distinct conspiracies.

4. The Court finds that the RICO conspiracy offense and the underlying predicate racketeering acts are separate offenses.

5. Therefore there are no double jeopardy concerns implicated in the current prosecution.

6. The Court also considers United States v. Clark, 218 F.3d 1092 (9 Cir. 2000), and finds that the government was under no obligation to inform the defendant of an ongoing criminal investigation.

7. The Court therefore finds that the defendant's due process rights were not violated.

8. The Court finds that Federal Rule of Criminal Procedure 11 only requires the government to inform the defendant of the direct consequences of a guilty plea.

9. The Court finds that the defendant's reliance on collateral estoppel is without merit as there has been no prior litigation on this issue.

10. The Court finds that because the defendant is being charged with a different conspiracy, rather than possession of controlled substances mentioned in a 2007 plea agreement, the government has not violated the terms of the 2007 plea agreement.

11. The Court does however strike the overt acts No. 122, 147, and 148 as to defendant JOVEL only.

THEREFORE, FOR GOOD CAUSE SHOWN:

IT IS HEREBY ORDERED that defendant Paul Cortez Jovel's Motion to Strike Portions of the Indictment is denied and overt acts No. 122, 147, and 148 are stricken as to defendant JOVEL only.

IT IS SO ORDERED.

Presented by:

Kevin L. Rosenberg Department of Justice

Having heard from plaintiff, the United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, and defendant PAUL CORTEZ JOVEL, by and through the authorized representative of his counsel of record, Michael Treman, at a hearing held before this Court on September 16, 2010, and good cause appearing, the Court hereby FINDS AS FOLLOWS

1. The Court read and considered Paul Cortez Jovel's Motion re: Discovery relating to applications for orders to intercept wire communications (doc. 631) filed on August 30, 2010, and the government's opposition thereto.

2. The Court, after carefully considering the pleadings, declarations and documents filed by the parties, as well as the argument presented at the hearing, orally denied the defendant's Discovery Motion. This Order will supplement the Court's oral ruling denying the motion. In connection with this Order, the Court makes the following Findings of Fact and Conclusions of Law.

3. On September 16, 2010, this Court held a hearing on the motion. Defendant appeared in person with his counsel of record. After affording the parties opportunity for argument, the Court denied defendant's Discovery Motion. The Court considered Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and finds that defense counsel has no constitutional right to conduct his own search of the government's files to argue relevance.

4. The Court finds that the categories of the discovery relevant to the statements contained in the wire affidavits do not fall within the government's discovery obligations under Rule 16, Brady/Giglio, or the Jencks Act.

5. The Court considers United States v. Spagnuolo, 549 F.2d 705 (9th Cir. 1977), and finds that the defendant's purported need to pursue pretrial suppression motions does not justify expanding the government's discovery obligation.

6. The Court finds that the defendant has not established that the requested discovery is material to the preparation of his defense or material to his guilt or punishment.

7. The Court finds that the defendant's discovery request E and G are subject to the governments limited privilege to withhold the identity of confidential informants.

8. The Court further finds that many requests are premature as they seek Jencks statements which the Court has previously ruled upon.

THEREFORE, FOR GOOD CAUSE SHOWN:

IT IS HEREBY ORDERED that defendant Paul Cortez Jovel's Motion re: Discovery relating to applications for orders to intercept wire communications is denied.

IT IS SO ORDERED.

THE HONORABLE MANUEL REAL UNITED STATES DISTRICT JUDGE

Presented by:

Kevin L. Rosenberg Department of Justice

20101001

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