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United States v. Leal

United States Court of Appeals, Tenth Circuit

April 22, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GASPAR LEAL, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CR-03308-JB-2)

          Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for the Defendant - Appellant.

          Jason Wisecup, Assistant U.S. Attorney (Fred Federichi, First Assistant U.S. Attorney with him on the brief), Albuquerque, New Mexico, for the Plaintiff - Appellee.

          Before MATHESON, MURPHY, and CARSON, Circuit Judges.

          MATHESON, CIRCUIT JUDGE.

         Gaspar 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.

         I BACKGROUND

         A. Factual Background

         The 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.

         1. Tapia Deal

         In 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.

         On May 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.

         On May 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.

         On May 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.

         On June 8, Mr. Leal, then in jail on unrelated charges, [1] 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 CI.

         Later 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.

         2. Carmona Deal

         On July 21, 2016, Mr. Leal called the CI from prison[2] 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.

         On July 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.

         On July 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.

         B. Procedural Background

         1. Tapia Indictment and Trial

         On July 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.

         On December 20, 2017, a jury convicted Mr. Leal on the conspiracy count and acquitted him on the distribution count.

         2. Carmona Indictments

         On 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).

         After 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.

         3. Motion to Dismiss

         On 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.

         "In 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, ...


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