from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CR-03308-JB-2)
Bowles of Bowles Law Firm, Albuquerque, New Mexico, for the
Defendant - Appellant.
Wisecup, Assistant U.S. Attorney (Fred Federichi, First
Assistant U.S. Attorney with him on the brief), Albuquerque,
New Mexico, for the Plaintiff - Appellee.
MATHESON, MURPHY, and CARSON, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Leal appeals from the district court's denial of his
motion to dismiss the indictment. In his motion, he argued
that the drug conspiracy charged in this case is the same
conspiracy for which he was convicted in a previous case and
that continued prosecution would violate his double jeopardy
rights. The district court found the conspiracies were not
interdependent, the indictment therefore charged a separate
offense, and double jeopardy did not apply. We affirm.
facts in this section are drawn from the factual findings in
the district court's order, which were based largely on
the Government's pleadings, and which recounted Mr.
Leal's conduct in two drug transactions: (1) the Tapia
Deal and (2) the Carmona Deal. The parties do not dispute the
facts underlying Mr. Leal's first conviction or the facts
supporting the indictment he sought to dismiss.
2016, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives ("ATF") employed a confidential
informant ("CI") to buy drugs in Albuquerque, New
Mexico. An ATF agent told the CI to contact Mr. Leal.
7, 2016, the CI went to Mr. Leal's home. While there, the
CI told Mr. Leal he wished to make money buying and selling
drugs and was interested in buying "an ounce or
two" of methamphetamine or cocaine. ROA at 94.
9, Mr. Leal referred the CI to a seller named
"Pete." Mr. Leal said Pete could sell meth to the
CI. The CI met Pete the following day, but Pete could sell
him only 3.5 grams.
12, after the CI told Mr. Leal he was disappointed with the
amount of meth he had purchased from Pete, Mr. Leal sold the
CI $40.00 worth of heroin and $30.00 worth of meth. Mr. Leal
tried unsuccessfully to call other drug dealers to arrange a
larger sale for the CI.
8, Mr. Leal, then in jail on unrelated charges,
called the CI and gave him Bernadette Tapia's phone
number. He said Ms. Tapia could sell drugs to the CI. Ms.
Tapia's husband, Christopher Apodaca, who was in jail
with Mr. Leal, had given her permission to sell drugs to the
that day, the CI and an undercover ATF agent met with Ms.
Tapia and her daughter, Candace Tapia, and bought two ounces
of meth from them. The ATF deposited $60.00 into Mr.
Leal's jail commissary account for arranging the deal.
21, 2016, Mr. Leal called the CI from prison and gave him Jose
Casillas's phone number. When the CI contacted Mr.
Casillas and asked to buy meth, Mr. Casillas offered to put
the CI in touch with an unidentified woman. The next day,
Erika Barraza texted the CI.
24, the CI called Ms. Barraza. She told him that her
boyfriend, Luis Arreola-Palma, was in prison with Mr. Leal
and had instructed her to contact him. The same day, Mr.
Casillas conducted a conference telephone call with the CI,
Mr. Leal, and Mr. Arreola-Palma. Mr. Arreola-Palma told the
CI to contact his cousin, Daniel Carmona, who could sell an
ounce of meth to the CI. Mr. Leal gave Mr. Carmona's
telephone number to the CI and asked the CI to send him
money. The CI called Mr. Carmona to arrange the transaction.
25, the CI and an undercover ATF agent purchased more than 50
grams of methamphetamine from Mr. Carmona. On August 3, the
CI and an undercover ATF agent again purchased more than 50
grams of methamphetamine from Mr. Carmona.
Tapia Indictment and Trial
12, 2016, a grand jury indicted Mr. Leal, Bernadette and
Candace Tapia, and Brandon Candelaria (Candace Tapia's
boyfriend) with (1) conspiracy to distribute 50 grams or more
of methamphetamine, in violation of 21 U.S.C. § 846; and
(2) distribution of more than 50 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). The indictment alleged Mr. Leal and the sellers
conspired on or about June 8, 2016.
December 20, 2017, a jury convicted Mr. Leal on the
conspiracy count and acquitted him on the distribution count.
August 9, 2016, a grand jury indicted Mr. Leal, Mr. Carmona,
and Mr. Arreola-Palma with (1) conspiracy to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C.
§ 846; and (2) distributing 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B).
the December 20, 2017 verdict in the Tapia case, the grand
jury returned a superseding indictment in the Carmona case.
It added another distribution count and charged Mr. Leal with
a conspiracy beginning "on a date unknown, but not later
than July 21, 2016, and continuing to on or about August 3,
2016." ROA at 100.
Motion to Dismiss
March 6, 2018, Mr. Leal moved to dismiss the conspiracy count
of the superseding indictment under Federal Rule of Criminal
Procedure 12(b). He said the activity underlying the Tapia
conviction and the Carmona superseding indictment was part of
one larger conspiracy. He argued that trying him again for
conspiracy would therefore violate double jeopardy.
essence," he said, "the first jury had to have
found the necessary criminal agreement, formed on June 8,
2016, between Mr. Leal, the government informant, and others,
to convict Mr. Leal in trial one." Id. at
62-63. Because the superseding indictment charged a
conspiracy "beginning at a date unknown," Mr. Leal
claimed both conspiracy charges stemmed from the same
agreement, making them the same offense for double jeopardy
purposes. Id. at 58; see also id. at 63
("No doubt, ...