The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS [Dkt. Nos. 1948, 2001]
Presently before the court is Defendant Vladimir Iraheta's Motion to Dismiss Fourth Superseding Indictment (Dkt. No. 2001), as well as Defendant Eduardo Hernandez's Motion to Dismiss Fourth Superseding Indictment (Dkt. No. 1948), in which Defendants Leonidas Iraheta, Vladimir Iraheta, and James Wooten join. Having considered the submissions of the parties and heard oral argument, the court denies the motions and adopts the following order.
Defendants Eduardo Hernandez, Leonidas Iraheta, and Vladimir Iraheta are charged in the Fourth Superseding Indictment with, among other charges, the Violent Crime in Aid of Racketeering ("VICAR") murder of victim J.B. on July 21, 2001, in violation of 18 U.S.C. Sections 1959(a)1 and 2(a) and California Penal Code Sections 31. 187, and 189. Defendant Wooten is charged with VICAR conspiracy to assault victim F.C., VICAR assault of F.C., and the VICAR murder of victim L.A.G. on September 15, 2007, in violation of 18 U.S.C. Sections 1959(a)1, (a)2, (a)5 and 2(a) and California Penal Code Sections 31, 187, and 189. Defendants now move to dismiss the Fourth Superseding Indictment on the basis of government misconduct before the grand jury.
A district court may dismiss an indictment in cases of constitutional error, where the integrity of grand jury proceedings "have been so compromised as to render the proceedings fundamentally unfair." United States v. Isgro, 974 F.2d 1091, 1094 (9th Cir. 1992) (internal quotation and citation omitted); See also United States v. Chapman, 524 F.3d 1073, 1084 ("[A] district court may dismiss an indictment on the ground of outrageous government conduct if the conduct amounts to a due process violation."). The court may also exercise its supervisory powers to dismiss an indictment where "there is grave doubt that the decision to indict was free from the substantial influence of the misconduct." Isgro, 974 F.2d at 1094 (quotation and alteration omitted).
A. The 2001 J.B. Murder Defendants Hernandez and Vladimir Iraheta assert that
Supervisory Special Agent Paul Keenan ("Agent Keenan") misrepresented material facts to the grand jury. The court addresses each contention in turn.
During a 2007 proffer session, cooperator J.V. stated that he knew about a murder that took place "two or three years" ago. According to J.V., Defendant Vladimir Iraheta told him that Defendants V. Iraheta, L.Iraheta, and Hernandez (collectively, Defendants) went looking for a rival gang member to shoot, parked a gold Toyota Camry near 4th Street and Witmer Street, then chased down and shot an individual they believed to be a member of a rival gang.
b. Agent Keenan's Testimony Agent
Keenan testified before the grand jury.*fn1 While pointing to a map, Agent Keenan stated "[J.V.] remembers that they park on Witmer Street . . . and 4th. Based on the description, it's probably more like 2nd Street." (Government's Consolidated Opposition, Ex. A at 60.) Agent Keenan testified to the existence of graffiti reflecting Defendants' alleged gang affiliation and monikers near the intersection of 2nd Street and Witmer Street. (Id. at 65.) He then showed the grand jury pictures of the graffiti, stating "The first one you see here . . . is 2nd and Witmer. That's why I believe they parked at 2nd and Witmer because that's where the graffiti started up." (Id. at 65:8-19.) Agent Keenan continued, "[J.V.] told us they parked on Witmer and 4th. But I don't know that - it seems to me, if the tagging started here(indicating) and they parked at Witmer, it's more likely they parked at Witmer and Second." (Id. at 84:22-85:1.) Agent Keenan later added, "[J.V.] said he believed they parked near 4th and Witmer. . . . As you can see, right here is 4th Street and here is Witmer. They do not intersect." (Opp. Ex. B at 39:17-22.)
Defendants assert that Agent Keenan "insinuate[d] he has some basis to believe J.V. really means 2nd and Witmer when in fact no such basis exists," (V. Iraheta Br. at 5.) and that "Agent Keenan testified before the Grand Jury that it was 'probably more like 2nd street.' Agent Keenan provided this alternative fact out of thin air [.]." (Hernandez Br. at 4.) Defendants' contentions are not supported by the record. Agent Keenan explicitly told the grand jury that J.V. had said 4th and Witmer, but that Agent Keenan believed it more likely that Defendants parked at 2nd and Witmer because of the graffiti located there and because 4th Street and Witmer do not intersect. Agent Keenan did not, therefore, misstate J.V.'s testimony regarding Defendants' parking location.
2. Deputy Ching's Observation of Three Taggers
Agent Keenan explained to the grand jury that during the course of his review of the evidence of the 2001 J.B. murder, Agent Keenan discovered a statement from Los Angeles County sheriff's deputy Ching, "who was actually on surveillance at the time . . . on Columbia Avenue . . . and 3rd."*fn2 (Opp. Ex. A at 72). According to Agent Keenan: [Deputy Ching] said that he had seen three Hispanic males spray painting, tagging. He said one was doing the tagging, and the another [sic] one was doing acting as a lookout, and a third one was a little farther away, and he was grabbing at the front of his waistband underneath his shirt as if he had something underneath his shirt. He ...