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United States v. Fuentes-Verdugo

United States District Court, W.D. Missouri, Western Division

May 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NAYELI FUENTES-VERDUGO, Defendant.

          REPORT AND RECOMMENDATION

          SARAH W. HAYS UNITED STATE MAGISTRATE JUDGE

         On January 8, 2019, defendant Nayeli Fuentes-Verdugo, along with co-defendants Omar Eliseo Barraza-Bueno, Alfredo Soto-Contreras, Rey Moreno-Chepe, and Daniel Calderon-Varga, was charged in a twenty-five count Indictment. (Doc. # 27). Defendant Nayeli Fuentes-Verdugo is charged in the Indictment with three criminal counts: (1) Conspiracy to Distribute Methamphetamine; (2) Aiding and Abetting Possession with Intent to Distribute Methamphetamine; and (3) Aiding and Abetting Distribution of Methamphetamine. Defendant has pled not guilty to the charges.

         The matter currently before the Court is defendant Nayeli Fuentes-Verdugo's Motion to Dismiss Due To Outrageous Government Conduct, With Suggestions. (Doc. #56). Defendant contends that the government engaged in outrageous conduct and violated her due process rights when it created a drug sting operation that resulted in her being targeted and criminally charged. (Doc. # 56). In opposition, the government maintains that during the sting operation, which involved the sale of twenty-five pounds of methamphetamine from defendants to the government's undercover agent, the government took no actions that even approached the threshold for finding outrageous government conduct. (Doc. # 69).

         For the reasons set forth below, the Court finds that a hearing on the motion is not necessary and it is recommended that defendant Nayeli Fuentes-Verdugo's motion to dismiss be denied.

         I. FACTUAL BASIS FOR DEFENDANT'S MOTION

         Defendant's motion to dismiss is based upon the following factual allegations:

1. Relying upon discovery provided by the government, it is alleged that, sometime before June of 2018, Federal law enforcement authorities set up an elaborate sting operation based in a warehouse somewhere in the Kansas City area. Where this warehouse is located is a secret being protected to this date. Federal agents and informers posed as illegal drug and gun distribution kingpins and sought to make fake deals for purchase of large quantities of drugs and guns from any and all comers. Substantial efforts were made to record each such sting transaction. When possible, transactions were conducted at the warehouse. There, sophisticated recording systems, consisting of multiple cameras directed at different angles, and sensitive microphones, were stationed to memorialize activities outside, at the entrance to the warehouse, and inside the building, both in a large open area, and also in an office. When activities occurred away from the warehouse site, multiple recording devices were employed, including body cams and mics on the undercover agents, and remote cameras and mics employed by supporting surveillance teams.
2. Beginning in June of 2018, a series of fifteen sting interactions occurred involving, primarily, Alfredo Soto-Contreras (Named Defendant #1), and Omar Eliseo Barraza-Bueno (Named Defendant #2). These interactions consisted of the undercover agent paying money to these men for guns and drugs they delivered to him, and also the undercover agent planning with these defendants for the defendants to sell to the agent a large amount of methamphetamine, originally projected to be upwards of 100 pounds, but ultimately scaled back to 25 pounds.
3. Nayeli Fuentes-Verdugo is the wife of defendant Barraza-Bueno. Ms. Verdugo is a Mexican national who has legally lived and worked in the Bakersfield, California area for many years. During a lull in her work schedule, Ms. Fuentes-Verdugo traveled to the Kansas City area to visit her husband, defendant Barraza-Bueno, who was staying here. Though Ms. Fuentes-Verdugo has lived in the United States for a considerable period of time, she only speaks and understands her native Spanish language.
4. Shortly after Ms. Fuentes-Verdugo arrived in the Kansas City area, three interactions occurred between the undercover agent and defendant Barraza-Bueno, on December 10, 2018 at her husband's home in Kansas City, Kansas, on December 17, 2018 at Elvira's Restaurant on Independence Avenue in Kansas City, Missouri, and on December 18, 2018 at the undercover sting warehouse. On each occasion, Ms. Fuentes-Verdugo was present, at the home in Kansas City, Kansas because she was staying there, and at Elvira's and the warehouse because she was brought there either by Barraza-Bueno or by Daniel Calderon-Vargas, another codefendant. On each of the three occasions, English language discussions about guns and drugs were engaged between the undercover agent and defendant Barraza-Bueno. On December 17, at the instance of the undercover agent, it was discussed that, instead of monies for drugs being paid directly to Barraza-Bueno, as had been the practice in all previous transactions, the monies for the anticipated December 18 transaction would supposedly be paid to Ms. Fuentes-Verdugo. This conversation was never directed to Ms. Fuentes-Verdugo, and was never translated from English to Spanish.
5. During all three interactions, any reasonable person would have taken note that Ms. Fuentes-Verdugo could not understand the English language conversations going on around her.
6. On December 18, a passenger car, driven by a codefendant, arrived at the undercover warehouse. Approximately 25 pounds of methamphetamine was contained in the trunk of that car. Shortly thereafter, defendant Barraza-Bueno arrived in a separate vehicle. The undercover agent inquired why others, including Ms. Fuentes-Verdugo, were not present, and was informed that the others were elsewhere eating breakfast. The undercover officer refused to carry on with the transaction, and insisted that the others be present before he would continue. A call was made, directing that the others, including Ms. Fuentes-Verdugo, present themselves at the warehouse. About fifteen minutes later, a pickup truck arrived at the warehouse, driven by defendant Daniel Calderon-Vargas, with Ms. Fuentes-Verdugo as a passenger. Defendant Calderon-Vargas got out of the truck and went inside the warehouse, but Ms. Fuentes-Verdugo remained in the truck. At that point, the undercover agent ordered that defendant Calderon-Vargas have Ms. Fuentes-Verdugo come into the warehouse. Per that direction, defendant Calderon-Vargas waved to Ms. Fuentes-Verdugo to come into the warehouse, and she complied with that direction which was initiated by the undercover officer. The drugs, which had arrived much earlier, were then taken out of the car, and weighed. A couple of minutes after that, the undercover officer got out of harm's way, and heavily armed officers, who had secreted themselves in another part of the warehouse, stormed in, and placed all of the codefendants under arrest.

(Doc. # 56 at 1-5).

         The government's opposition to the motion to dismiss contained the following factual statements:

1. On December 17, 2018, an undercover agent with ATF (UC), and four of the members of the indicted drug conspiracy (including Defendant Fuentes-Verdugo) sat in a restaurant and made arrangements for the sale of 25 pounds of methamphetamine (the defendants selling to the UC) to take place the next day. After the sale, the defendants were to travel in caravan with the UC to Chicago so the UC could sell to another party (this was a rouse). In confirming the logistics of the transaction with Defendant Barraza-Bueno, it was established that everyone would be arriving at an agreed-upon location for the sale, but that only three would be continuing to Chicago. During that discussion, the UC and Barraza-Bueno engaged in the following exchange:
UC: She's staying here? (referring to Defendant Fuentes-Verdugo)
B-B: She's gonna stay here.
UC: So, she's coming down, she's taking ...

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