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United States v. Alfaro

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 ...


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